Citation Nr: 21024302 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-03 310 DATE: April 22, 2021 ORDER Entitlement to a total rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities preclude substantial gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from June 1961 to June 1965. In August 2018, the Veteran testified before the undersigned at a Board of Veterans’ Appeal (Board) hearing. A transcript of that hearing has been associated with the claims file. In a February 2019 decision the Board, in pertinent part, denied entitlement to a TDIU for the period prior to April 28, 2015. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2019 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the February 2019 Board decision to the extent that it denied a TDIU. In an April 2020 decision, the Board denied entitlement to a TDIU. The Veteran again appealed the Board decision to the Court. In a December 2020 order, which incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the April 2020 Board decision. As to the characterization of the issue on appeal, the Board finds that it is as characterized above (i.e., entitlement to a TDIU) and it is not limited to the period prior to April 28, 2015, as characterized in the earlier and vacated February 2019 Board decision because, as explained below, the issue of an effective date for the grant of a TDIU is not before the Board. In this regard, as noted in the prior Board decision, context in this case is important: It is valuable to note that the Veteran has already been found to be 100 percent disabled by VA. The Veteran has been in receipt of a schedular 100 percent combined disability rating since April 28, 2015. He was also granted a temporary evaluation of 100 percent based on surgical or other treatment necessitating convalescence due to left knee surgery, effective from December 14, 2011 to February 1, 2013, and from March 22, 2012 to May 1, 2013, for total right knee replacement. Additionally, the Board notes that the Veteran received SMC under 38 U.S.C.§1114 (s) from March 22, 2012 to May 1, 2013. The TDIU Claim The Veteran claims, in substance, that he is entitled to a TDIU because his service-connected disabilities prevent him from working. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The record shows that the Veteran is service-connected for the following disabilities: • Bilateral knee degenerative joint disease rated as 30 percent disabling from January 10, 2011; • Right knee arthroplasty rated as 100 percent disabling from March 22, 2012, 30 percent disabling from May 1, 2012, and 60 percent disabling from January 23, 2015; • Left knee arthroplasty rated as 100 percent disabling from December 14, 2011, 30 percent disabling from February 1, 2013, and 60 percent disabling from January 23, 2015; • Depressive disorder rated as 30 percent disabling from January 20, 2011, and 50 percent disabling from January 23, 2015; • Right hip disability rated as 10 percent disabling under Diagnostic Code 5253 from June 24, 2020; • Left hip disability rated as 10 percent disabling under Diagnostic Code 5253 from June 24, 2020; • Right hip disability rated as noncompensable under Diagnostic Code 5251 from June 24, 2020; • Left hip disability rated as noncompensable under Diagnostic Code 5251 from June 24, 2020; • Right hip disability rated as noncompensable under Diagnostic Code 5252 from June 24, 2020; • Left hip disability rated as noncompensable under Diagnostic Code 5252 from June 24, 2020; • Left knee scar rated as noncompensable from January 10, 2011; • Right knee scar rated as noncompensable from March 22, 2012; and • Bilateral hearing loss rated as noncompensable from January 10, 2011. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) because he has one disability rated as 40 percent or higher and he has a combined rating of 70 percent or higher. The next question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, the Veteran’s VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), dated in July 2011 and September 2011, reported that he had not worked full-time in February 2006 and became he is too disabled to work in January 2006 because of his service-connected disabilities. As to his work history, the Veteran reported that from 2001 to 2006 he worked 40 hours a week as a software engineer. As to his education, the Veteran reported that he had 4-years of high school. In other evidence of record, it was noted that the Veteran completed high school and one year of college. It was also reported that his last job was as a software engineer for J.P. Morgan Chase and he had been employed in the same industry for more than 40 years. As to the Veteran’s being able to work performing jobs that require sedentary employment and non-sedentary employment, including his past employment as a software engineer as well as other possible employment that could make use of his work experience and 4-years of high school/1-year of college, the Board finds that the medical records show that the problems caused by his service-connected depressive disorder, bilateral knee disabilities, bilateral hip disabilities, and bilateral hearing loss adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment, and interact effectively with co-workers and/or customers. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected depressive disorder, bilateral knee disabilities, bilateral hip disabilities, and bilateral hearing loss would make it dangerous for the Veteran and his co-workers for him to work in most non-sedentary employments for the first time. Id. Similarly, the Board finds that that the depressive disorder, bilateral knee disabilities, bilateral hip disabilities, and bilateral hearing loss would make it very difficult to learn the new skills needed to work in most sedentary employments, sit for prolonged periods of time, and interact with his co-workers as well as any customers and carry out the duties required by such employment. Id. Given the above, the Board finds that the Veteran’s service-connected disabilities prevent him from securing or following a “substantially gainful” occupation given his prior vocational history, work experience, and the impact his service-connected depressive disorder, bilateral knee disabilities, bilateral hip disabilities, and bilateral hearing loss have on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in his past employment in as a software engineer, because of the problems they would cause in any work environment. Further development of this issue is simply not warranted in light of the history of this case. (Continued on the next page)   Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities have on all employment and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.