Citation Nr: 21024167 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 10-34 874 DATE: April 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), prior to April 7, 2017, is granted. FINDING OF FACT Prior to April 7, 2017, the Veteran was been unable to secure of follow substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW Prior to April 7, 2017, the criteria for a TDIU under 38 C.F.R. § 4.16 (a) were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from June 1967 to June 1970 and from December 1979 to May 2003. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The matters were subsequently transferred to the RO in Baltimore, Maryland. The Veteran was afforded a Central Office Board hearing before the undersigned Veterans Law Judge in November 2016. A copy of the transcript has been associated with the Veteran’s electronic claims folder. Entitlement to TDIU, prior to April 7, 2017. The Veteran contends that he is entitled to TDIU, prior to April 7, 2017, because he was not capable of maintaining or sustaining any type of gainful occupation due to his right shoulder and left leg disabilities. See April 2021 Representative’s Brief. For the reasons explained below, the Board finds that entitlement to TDIU, prior to April 7, 2017, is warranted. Regulations provide that a total disability rating based on individual unemployability is warranted when the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment by reason of his service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. VA defines substantially gainful employment as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides.” See M21-1, Part IV, Subpart ii, Chapter 2(F)(1)(c). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The term unemployability is not synonymous with the terms unemployed and unemployable for the purposes of determining entitlement to TDIU. A Veteran may be unemployed or unemployable for a variety of reasons, but a determination as to entitlement to TDIU is appropriate only when a veteran’s unemployability is the result of a service-connected disability. See M21-1, Part IV, Subpart ii, Chapter 2(F)(1)(b). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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). For purposes of TDIU, disabilities affecting a single body system (i.e., orthopedic) will be considered a single disability. As the Veteran’s shoulder, leg and knee disabilities affect a single body system and can be combined as one 40 percent disability, the schedular requirements are met prior to April 7, 2017 (from June 5, 2007). Prior to April 7, 2017, there is medical evidence that the Veteran had difficulty raising his arm; radiating pain in his shoulder; pain with walking; difficulty bending and buckling of the knee. See June 2010 VA examination report; April 2010 records from Dr. S.S. The Veteran reported on his VA Form 21-8940 that he worked as a training instructor for over 30 years before his knee, leg and shoulder disabilities precluded him from his completing his job. He also reported that his highest level of education achieved was an associate degree in applied science. Based on the foregoing, the Board finds that entitlement to TDIU, prior to April 7, 2017, is warranted. The Board credits the evidence which supports the fact that the Veteran was unable to stand for extended periods of time or lift heavy items due to his service-connected left leg and knee disabilities and right shoulder disability. These limitations would exclude him from most physically laborious positions. The Board finds that the Veteran is unlikely to be able to be able to sustain gainful employment in a sedentary position for 2 main reasons. First, the Veteran’s 30-year career has been in the same position as a training instructor. Although he has an associate degree in applied science, he has arguably become a seasoned expert in 1 position. It is not impossible for him to become versed in another position; however, the Board is hard pressed to find one. Second, most sedentary positions would require the Veteran to answer phones, type, or use his hands and arms. There is credible evidence that due to the Veteran’s right shoulder disability, he is for all intents and purposes, one handed. His right shoulder is his dominant side and therefore would be required in his tasks of answering phones, typing or writing. There is evidence that extended use of his right shoulder (arm) causes him pain and would likely result in him needing many breaks to accomplish the administrative tasks. It is equally unlikely that many employers would be willing to offer such frequent breaks. Therefore, the Board finds that the Veteran’s service-connected disabilities rendered him unemployable prior to April 7, 2017. The Veteran is receiving Social Security Administration (SSA) disability benefits for his orthopedic disabilities. Although receipt of SSA benefits is not conclusive evidence of entitlement to TDIU, medical records used to develop his SSA disability claim were helpful in the Board’s TDIU analysis. In that regard, K.J., an SSA medical consultant, opined that the Veteran would be limited in: (1) his push or pull abilities due to his upper and lower extremities; (2) gross manipulation and (3) overhead reach. The Board acknowledges that the Veteran has been receiving longterm disability benefits since 2003. See May 2010 VA Form 21-4192. However, the Board finds that this income is marginal. Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Here, the Veteran is in receipt of annual long-term disability benefit payments of $18,900. In 2017, the poverty threshold for one person above 65 years old was $11,756. However, there is evidence that the Veteran has a family of 3 (wife, granddaughter and himself). In 2017, the poverty threshold for three people was $19,515. The Board has taken into consideration the Veteran’s household which he supports and finds that the long-term disability benefit payments are marginal income for the purposes of determining whether the Veteran is entitled to TDIU. Based upon the medical treatment history, the Veteran’s employment history, and his level of education, the Veteran was unemployable, prior to April l7, 2017, as a result of his service-connected left leg and knee and right shoulder disabilities. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Baskerville, LaRita 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.