Citation Nr: 21028201 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-35 361A DATE: May 10, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1985 to November 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in A total disability rating based on individual unemployability (TDIU) The Veteran seeks a TDIU. He contends his service-connected disabilities prevent him from securing or following substantially gainful employment. A TDIU may be assigned, where the schedular rating is less than total, where 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). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: persistent depressive disorder, rated as 50 percent; degenerative joint disease of the lumbosacral spine, rated as 40 percent; right total knee arthroplasty, rated as 30 percent; left hip strain, rated as 10 percent; osteoarthritis of the left knee, rated as 10 percent; right hip strain, rated as 10 percent; left hip, rated as noncompensable; residuals of stomach ulcer, rated as noncompensable. He has a combined 80 percent rating from July 2012 and from March 2016. He also has a 90 percent combined evaluation from April 2016 onward, with 100 percent between January 2015 to March 2016. Therefore, his evaluation for compensation due to his service-connected disabilities met the percentage rating standards for TDIU under 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. The evidence of record shows the Veteran last worked full time in October 2012 as a police officer. He then worked some part-time jobs with the last one ending in December 2014. These other jobs included security officer and forensic analyst. He completed four years of college including a graduate certificate for forensic document examination. He also received training as an emergency medical technician and several other coursed related emergency medical service. See 03/24/2020 VA Form 21-8940. The competent evidence supports a finding that Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his bilateral knees, bilateral hips, and lumbar spine. The Board will highlight some of this evidence next. A February 2013 knee disability benefits questionnaire (DBQ) noted that the Veteran was impaired in his ability to perform occupational tasks that required running, jumping, squatting, kneeling, climbing, or any other strenuous physical activity. He was limited to walking 200 yards at one time, standing for five minutes, and unlimited sitting with breaks every thirty minutes. An April 2016 VA examination noted that the Veteran's bilateral knees were impacted by repetitive crouching, prolonged standing and walking, and carrying heavier weights. A February 2014 thoracolumbar spine DBQ noted that the Veteran disability impacted his ability to work in both physical and sedentary positions. It was noted that he stopped being a police officer and also retired from a lab position due to an inability to sit and stand. He was further limited to some part-time review of files from his recliner. An April 2016 VA examination documented the functional impact on his spine from repetitive bending, stooping, heavier lifting, and carrying would prove more difficult. A May 2017 private evaluation regarding the Veteran's bilateral knees and thoracolumbar spine documented that in the course of an eight-hour day, he would be unable to stand, walk, sit, and/or stoop for less than two hours. He would only be able to lift or carry less than ten pounds consistently. The evaluator opined that he would be unable to maintain substantial gainful employment as a result of his bilateral knee and back disabilities when his limited mobility, severe pain with reduced concentration, increased irritability, and physical limitations were factored together. A March 2020 hip VA examiner documented that the Veteran's hips impacted his ability with prolonged sitting, standing, and walking. He also had difficulty climbing stairs. The Veteran's ability to secure and follow a substantially gainful occupation is also impacted by the mental effects of his persistent depressive disorder. An April 2016 VA examiner found that he had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of stress, or; symptoms controlled by medication. A January 2015 DBQ submitted in July 2016 documented the Veteran as having occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The evaluator indicated the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder. In March 2020, a VA examiner found him to have occupational and social impairment with reduced reliability and productivity. It was noted that his symptoms may negatively impact his ability to perform efficiently and communicate appropriately and effectively with others in a workplace setting on a consistent basis. (Continued on the next page) Given the forgoing, the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. As noted above, his physical disabilities restricted him from working in physical labor and he is required a certain amount of positional changes that affect sedentary work. His mental disability affects his ability to sustain stress, perform efficiently, and communicate appropriately. When all these disabilities are taken in conjunction with his educational background and occupational history, he is precluded from securing and following substantially gainful employment. Accordingly, a TDIU is warranted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cruz, 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.