Citation Nr: 21029198 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 09-01 955 DATE: May 12, 2021 ORDER Prior to January 22, 2010, a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT Prior to January 22, 2010, the Veteran's service-connected disabilities did not prevent him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU prior to January 22, 2010, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to December 1977. The case is on appeal from December 2008 rating decision. In a January 2021 decision, the Board granted a separate 20 percent rating for residuals of dislocated semilunar cartilage of the left knee prior to May 10, 2011; a separate 20 percent rating for residuals of dislocated semilunar cartilage of the right knee and a separate 10 percent rating for instability of the right knee, prior to May 4, 2019; and a TDIU effective July 1, 2012. The Board denied ratings higher than 10 percent for left knee osteoarthritis prior to May 10, 2011; a rating higher than 10 percent right knee osteoarthritis, prior to May 4, 2019; and ratings higher than 30 percent for osteoarthritis with total left knee replacement and status post total right knee arthroplasty. The issue of a TDIU prior to July 1, 2012 was remanded for additional development. By rating decision in March 2021, an earlier effective date of January 22, 2010 was granted for the award of a TDIU. As the issue of TDIU is part and parcel of the higher rating claims, the issue of a TDIU prior to January 22, 2010, remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). A TDIU prior to January 22, 2010. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 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. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, 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, 73 (2019). Discussion As noted above, the RO granted a TDIU based on the Veteran's service-connected disabilities from January 22, 2010. Thus, the issue is whether a TDIU is warranted during the rating period on appeal prior to January 22, 2010, which begins on December 9, 2003 the date of receipt of the Veteran's initial claim of service connection for knee disabilities, excluding all periods during which a 100 percent rating was assigned. Effective dates should not be assigned mechanically based on the date a TDIU application is filed. Rather, the effective date must be predicated on when unemployability can first be ascertained. See, e.g., Swain v. McDonald, 27 Vet. App. 219, 224 (2015). On this basis, the Board finds that a TDIU is not warranted prior to January 22, 2010, as unemployability is not factually ascertainable prior to that date. Although the Veteran meets the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) throughout the appeal period, the evidence shows the Veteran was gainfully employed during the entire rating period on appeal prior to January 22, 2010. The Veteran's January 2013 application for a TDIU notes he last worked on February 10, 2010, and a February 2012 Social Security Administration (SSA) determination reflects that the Veteran had not engaged in substantially gainful employment since August 18, 2010. Nevertheless, the RO determined that an earlier effective date in January 2010 was warranted. This is a favorable finding of the RO. Further, the Veteran reported full-time employment as an electrician from 1998 to 2002, and thereafter as an electrical and instrument technician, working 40 to 60 hours per week until February 2010, noting an annual income of approximately $60,000 in 2008. See January 2013 VA 21-8940. The Board notes that because the Veteran meets the schedular requirements for a TDIU based on his service-connected disabilities under 38 C.F.R. § 4.16(a) throughout the rating period on appeal, 38 C.F.R. § 4.16(b) is not applicable. Accordingly, the Board finds that the Veteran's service-connected disabilities did not prevent him from obtaining and maintaining substantially gainful employment prior to January 22, 2010. The preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not applicable; and an earlier effective date prior to January 22, 2010, for a TDIU is therefore not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.