Citation Nr: 21032209 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 14-28 079A DATE: May 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The competent evidence demonstrates that it is as likely as not that the Veteran's service-connected disabilities alone render him unable to secure or follow a substantially gainful occupation, commensurate with his education and employment background. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from August 1979 to December 1997. A hearing was conducted by Travel Board in May 2018 before the undersigned Veteran's Law Judge, at which the Veteran testified; a transcript is of record. The Board most recently remanded this case for additional development in November 2020. The matter has now returned to the Board for appellate review. Entitlement to a total disability rating based on individual unemployability (TDIU) Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2018). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person 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, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16 (a). When considering whether the Veteran's disabilities meets this requirement, disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system, will be considered as one disability for TDIU purposes. Id. The Veteran is service-connected for incomplete paralysis external popliteal nerve with moderate right foot drop at 20 percent disabling from August 6, 2019, and at 30 percent disabling from December 20, 2020; incomplete paralysis external popliteal nerve with moderate left foot drop at 20 percent disabling from August 6, 2019, and at 30 percent disabling from December 20, 2020; mild degenerative joint disease right foot at 20 percent disabling; mild degenerative joint disease left foot at 20 percent disabling; and tinnitus at 10 percent disabling. The Veteran's bilateral foot disabilities result from a common etiology and, therefore, are considered as one disability for TDIU purposes. Additionally, the bilateral factor applies. In this regard, the Veteran's combined evaluation is 70 percent from August 6, 2019, from which point he meets the minimum schedular requirements for TDIU consideration. See 38 C.F.R. §§ 4.16 (a), 4.25. What remains to be determined is whether the Veteran's service-connected disabilities rendered him unemployable. For the Veteran to prevail in a claim for TDIU, the evidence must show that the Veteran was unable to pursue a substantially gainful occupation due to his service-connected disabilities. The sole fact that a Veteran 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, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). At the May 2018 Board hearing, the Veteran testified that post military service, he owned construction company, drywall company, and various successful companies. Further, the Veteran described that as of the time of the hearing, he was no longer able to work. He related that he had to sell his business and close his companies because he was unable to be on his feet for a long period of time. The Veteran submitted a private examination from May 2018 in support of his claim. The private examiner found that the Veteran's bilateral foot disorders impacted his ability to work. In particular, the private examiner found that the Veteran would not be able to participate in running, climbing, or lifting. It was noted in private records of 2018, that the Veteran was driving an air conditioned tractor and had been plowing fields. In June 2019, the Veteran was afforded a VA examination in connection with his claim. The examiner determined that the Veteran's bilateral foot disorders impacted his ability to work. Specifically, the examiner explained that the Veteran had physical findings that limited his ability to stand and walk. Further, the examiner found that the Veteran experienced moderate to severe pain with any extraneous activities and recommended that the Veteran limit weight bearing on his feet to no more than 15 to 30 minutes. Additionally, the examiner explained that the Veteran's home or occupational tasks should be performed in a sitting position and that frequent breaks were necessary if a task required standing and walking. Ultimately, the examiner determined that the Veteran's occupational and home task should be sedentary in nature, taking pressure off the feet as much as possible. In his December 2020 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked full time as a self-employed drywall repairman in December 2015. He claimed to have stopped working full time due to his service-connected disabilities in December 2015. The Veteran reported that he had completed four years of high school and he also completed training in food science and microbiology food service. The Veteran reported that he had not tried to obtain employment since becoming too disabled to work. In January 2021 the Veteran was afforded VA examinations for his service-connected disabilities in connection with his claim. The examiner found that the Veteran's bilateral foot disorders impacted his ability to work due to pain with prolonged standing or walking. Further, the examiner explained that the Veteran would have difficulty in an occupational setting that involved prolonged standing or walking. Likewise, the examiner found that the Veteran's peripheral nerve disorder impacted his ability to work due to pain with prolonged standing and walking. Next, the VA audiologist found that the Veteran's tinnitus impacted his ability to work because he reported that he only gets 2 to 3 hours of sleep at a time. However, the VA audiologist further explained that there were no restrictions for the Veteran due to his tinnitus that would have any impact on his function in an occupational environment for all forms of work, including sedentary work. Reviewing the current evidence of record, the Board concludes that it is as likely as not that the Veteran's service connected disabilities preclude substantially gainful employment consistent with the Veteran's educational experience and occupational background. He has reported a high school education with some additional training, but occupational experience appears to have been primarily in the construction business. Given the significant bilateral lower extremity impairment, it is unlikely he could find employment successfully in that field. Further, the record does not reveal sufficient information that he is prepared for any suitable sedentary employment. Given the Veteran's testimony and the evidence on file, the Board concludes that the evidence is in equipoise as to whether he could obtain or maintain substantially gainful employment. As such, resolving reasonable doubt in his favor, TDIU is granted. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.