Citation Nr: 21029377 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-06 309A DATE: May 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities did not prevent him from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to March 1970. He died in March 2018. The appellant claims as the surviving spouse of the Veteran and has been substituted as the claimant in this matter to complete the processing of the deceased Veteran's claim. See March 2018 letter to the appellant from the RO. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. During the February 2021 Board hearing, the VLJ clarified the issue on appeal; clarified the concept of TDIU claims; identified potential evidentiary defects which included the effect of the Veteran's service-connected disabilities on his ability to obtain substantial and gainful employment; clarified the type of evidence that would support the Veteran's claim; and enquired as to the existence of potential outstanding records. Thus, the actions of the VLJ comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). 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. The central inquiry is "whether a veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. In this case, the Veteran met the minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for award of a TDIU as service connection was in effect for acquired psychiatric disorder diagnosed as adjustment disorder with depression associated with left anterior cruciate ligament repair, rated 30 percent disabling; status post left total knee replacement, rated 30 percent; total right knee replacement, rated 30 percent disabling; degenerative joint disease, right hip associated with status post left total knee replacement, rated 10 percent disabling; degenerative joint disease, left hip associated with instability of the right knee, rated 10 percent disabling; and degenerative arthritis of the lumbar spine associated with status post left total knee replacement, rated 10 percent disabling. Based on disabilities having a common etiology as well as the bilateral factor, the Veteran's overall combined rating is 80 percent and he meets the criteria for consideration of TDIU on a schedular basis. Based on the evidence of record, the Board finds that entitlement to TDIU is not warranted. Specifically, the Board finds that the Veteran's service connected disabilities were not of such severity to preclude (obtaining and retaining) substantial and gainful employment. The Board initially notes that the Veteran stopped working in 2011 and his type of work was field engineer support. He also attended two years of college. With regard to the Veteran's service-connected psychiatric disorder diagnosed as adjustment disorder with depression, the Board acknowledges the Veteran's report as well as the appellant's testimony as to the severity of the disability. Indeed, on VA examination dated June 2013, the VA examiner documented symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. However, the examiner also opined that the Veteran's psychiatric disorder was manifested by at most occupational and social impairment with reduced reliability and productivity. The examiner further opined that the Veteran's psychiatric disorder would not preclude the Veteran from obtaining employment that was not of a physical nature. Similarly, on VA examinations dated June 2013 for the Veteran's knees and March 2014 for the Veteran's hips and lumbar spine, the VA examiners indicated that these disabilities, while of a severe nature in that the Veteran would not be able to obtain employment of a physical nature, would not preclude the Veteran from obtaining employment that was not of a physical nature. There are no contrary medical opinion as to the effect of the Veteran's service-connected disabilities on his employability. Additionally, the VA treatment records support the VA examination findings and indicate that the Veteran was not precluded from performing work in a sitting position such as a job in which he was able to telework on a full-time basis. Indeed, there is no objective evidence that the Veteran was precluded from substantial and gainful employment due to his service-connected disabilities. Accordingly, while the evidence indicates some occupational impairment, it does not indicate that the Veteran was unable to secure and maintain substantially gainful employment. The Board is cognizant that the Veteran's highest level of education was completion of some college and that he previously worked as a field engineer. However, even with this educational background, the evidence does not show that the Veteran was unable to work in any form of substantial gainful employment as a result of his service connected disabilities. Indeed, there is no indication in the examination reports or other evidence of record that there were any restrictions on the Veteran's ability to accomplish tasks in any setting as a result of the service-connected disabilities such that he would not have been able to maintain substantial gainful employment. Accordingly, the Board finds that entitlement to TDIU is not warranted and the appellant's claim is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Arif Syed, 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.