Citation Nr: 21027393 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 13-32 497A DATE: May 5, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1973 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In October 2018, Counsel for the Veteran requested a hearing on this issue after receiving the September 2018 Supplemental Statement of the Case (SSOC). In August 2020, however, Counsel submitted to the Board a request to withdraw that request. Thus, the Board is satisfied that due process has been respected. See 38 C.F.R. § 20.603(e). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A finding of total disability is appropriate 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(a)(1), 4.15, 4.16. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 3435 (1994). Where the schedular rating is less than total, a total disability rating for compensation may be assigned 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, that disability shall be ratable at 60 percent or more. If there are two or more disabilities, then there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. Marginal employment, however, is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Because VA has failed to define them, the United states Court of Appeals for Veterans Claims has offered guidance on what it means to "secure or follow" substantially gainful employment. This phrase includes both an economic and non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The economic component requires that a veteran's income be lower than the federal poverty threshold. The non-economic component includes assessing a veteran's education, training, and work history, with the ultimate question being whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ibid. While this claim stems from the Veteran's July 2011 request for TDIU, the April 2018 VA Form 21-8940 contains the most complete description of the Veteran's employment, education, and training history. That document reveals that the Veteran only has worked in maintenance, last worked fulltime in August 2001, and has completed high school. The Veteran has the current service-connected disabilities: a lumbar spine disability (20 percent disabling beginning March 31, 2011, and 40 percent disabling beginning February 16, 2017); bilateral pes planus (10 percent disabling beginning February 3, 1992, 20 percent disabling beginning May 16, 2008, and 30 percent disabling beginning February 23, 2010); radiculopathy of the left sciatic and femoral nerve (each rated as 20 percent disabling beginning February 16, 2017); a left knee strain (10 percent disabling beginning March 31, 2011); and a right knee strain (10 percent disabling beginning January 10, 2020). The Veteran currently is rated as 90 percent disabled; thus, he currently meets the schedular criteria for a TDIU rating. VA examinations in March and April of 2017 were conducted for the Veteran's back, knees, ankles, and feet. The examiners all opined that the Veteran's ability to work would be impacted. Those conditions collectively would affect the Veteran's ability to bend, turn, lift, climb stairs, and walk or stand in a prolong manner. In March and April 2018 VA examinations for the Veteran's back, peripheral nerves, and knees, the examiners noted impairments in the form of stiffness, limited range of motion, difficulty with heavy lifting, bending, prolonged walking, or climbing stairs. In August 2020, the Veteran submitted a vocational assessment from E.C. In pertinent part, E.C. stated the following: Due to the Veteran's service connected conditions he has an inability to stand or ambulate for any period of time, or lift greater than light objects. He has only performed one occupation which was physically demanding and required he e on his feet constantly and which resulted in his leaving his job in 2003. As for any other lighter occupations he has acquired no meaningful skills transferable to sedentary jobs. He also cannot sit in the same place for extended periods of time due to the pain that results in his back, left knee, and ankles. Additionally, his constant pain also has the result of him being unable to stay on task at least 90% of a work day, which is typically the minimum required by an employer. Because of his service connected conditions he also would not be able to maintain reliable attendance, or perform work consistently due to constant pain in his back, feet, left leg, left knee, and ankles. Overall the Veteran is not able to perform work in both a physical field or sedentary field due to his service connected conditions. The Board is satisfied that the relevant evidence of record shows that, due to his service-connected conditions, the Veteran is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). There is conflicting evidence regarding when the Veteran stopped engaging in fulltime work. The most recent VA Form 21-8940 states that he stopped in 2001; however, E.C. notes that it was in 2003. Either way, the Board is satisfied that, for the entire period on appeal, the Veteran has not been working. Thus, the economic prong for a claim for TDIU has been satisfied. See Ray, 31 Vet. App. at 72. The Board next is tasked with assessing the Veteran's education, training, and work history, with the ultimate question being whether he is capable of performing the physical and mental acts required by employment. The Board finds that he is not. As the VA Form 21-8940 reveals, the Veteran has engaged in physically demanding labor only; he has no experience in any type of sedentary employment, nor does he have any sort of particular education or training that would allow him to effectively engage in sedentary work. The professional opinion of E.C. verifies this finding. Thus, in assessing the Veteran's education, training, and work history, the Board does not find that he is capable of performing the physical and mental acts required by employment, and the non-economic component of a claim for TDIU is established. Ibid. For the reasons discussed above, the Board finds that the Veteran's service-connected conditions prevent him from securing or following a substantially gainful occupation, and his appeal is granted. See 38 C.F.R. § 4.16(a). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, Associate 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.