Citation Nr: 21023768 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-20 879 DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, effective October 1, 2017, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Effective October 1, 2017, the Veteran’s service-connected disabilities precluded him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met, effective October 1, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1952 to August 1968. The Veteran was provided with a Board of Veterans Appeals (Board) hearing before the undersigned Veterans’ Law Judge in March 2021 and a transcript of the hearing has been associated with the Veteran’s claims file. Entitlement to a TDIU The Veteran contends that his service-connected disabilities prevent him from being employed. The Veteran specifically claims that due to his service-connected disabilities, he is unable to sit or stand for prolonged periods of time, cannot lift more than 20 pounds, has difficulty going up stairs, and cannot bend over repeatedly. See March 2021 Board hearing transcript. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER’S COLLEGEIATE DICTIONARY 1123 (2003). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA’s policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA’s Compensation Service for consideration of an extraschedular TDIU rating. The Board acknowledges that the Veteran is in receipt of a 100 percent rating for his service-connected right hip disability from August 31, 2016 through October 1, 2016. This renders the issue of entitlement to a TDIU moot from August 31, 2016 through October 1, 2016 based on the Veteran hip. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 293 (2008). However, as the Veteran does not have a combined 100 percent evaluation from October 1, 2017, the Board finds that the issue of entitlement to a TDIU from October 1, 2017 remains on appeal. As the Veteran filed a claim for TDIU in September 2016, entitlement to a TDIU for the period prior to August 31, 2016 is not currently on appeal before the Board. The Veteran has been awarded service connection for ankylosis of the left ankle at 30 percent from August 17, 1968, and 40 percent from September 19, 2016; bilateral hearing loss at 10 percent from August 17, 1968, and 40 percent from September 19, 2016; right total hip replacement as noncompensable from August 17, 1968, 100 percent from August 31, 2016, and 30 percent from October 1, 2017; lumbosacral strain, spinal stenosis at 20 percent from September 19, 2016; hemorrhoid, external as noncompensable from August 17, 1968; and scar as noncompensable from September 19, 2016. The record reveals that the Veteran last worked full time in February 2004 at a big-box retail store. His duties included stocking shelves and moving pallets. The Veteran has completed four years of high school. See July 2017 VA Form 21-8940. Prior to this, the Veteran worked at his family dairy farm and then worked installing tires for six years. See March 2021 Board hearing transcript. At a December 2016 hearing loss and tinnitus examination, the Veteran’s hearing loss disability was noted to impact his ordinary conditions of daily life, including his ability to work because he has “trouble localizing due to asymmetric hearing loss.” The Veteran was also noted to have “difficulty hearing and understanding in most listening situations.” At an April 2017 hip and thigh conditions examination, the Veteran’s hip disability was noted to impact his ability to perform any type of occupational task due to his “hip pain, stiffness, limited range of motion, difficulty with heavy lifting, prolong standing, walking, or climbing stair.” At an April 2017 ankle conditions examination, the Veteran’s ankle disability was noted to impact his ability to perform any type of occupational task due to his ankle pain and “difficulty with prolong walking or climbing stairs.” At an April 2017 back conditions examination, the Veteran’s back disability was noted to impact his ability to perform any type of occupational task due to his back pain and “stiffness, limited range of motion, difficulty with heavy lifting, bending, prolong walking or climbing stairs.” A March 2018 private medical opinion from an orthopedic surgeon noted that the Veteran had a complex right hip reconstruction in August 2016 that resulted in a “chronic sciatic nerve palsy with resultant footdrop.” The orthopedic surgeon noted that “based on this significance of his ongoing pain, significant abductor weakness, and most notably his foot drop, he has decreased walking tolerance, difficulty navigating stairs, night pain, and even sitting intolerance of 1-2 hours.” He added that the Veteran’s ongoing symptoms effectively preclude him from ability to work in any capacity at this time,” adding that “it is very unlikely that his status will improve in the future to return to work.” After a careful review of the evidence of record, the Board finds that the evidence indicates that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran’s employment history includes manual labor working at a big-box retail store stocking shelves, installing tires, and working on a family dairy farm. These positions require bending, pulling, standing, and lifting of heavy objects. The Board finds that the Veteran’s inability to stand or walk for prolonged periods, difficulty navigating stairs, difficulty with heavy lifting and bending, and difficulty with hearing precludes him from obtaining or maintaining substantially gainful employment. As such, the Board concludes that entitlement to a TDIU is warranted. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.