Citation Nr: 21032456 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-29 456 DATE: May 27, 2021 ORDER Entitlement to a total disability based upon individual unemployability (TDIU) prior to April 15, 2021 is granted. Entitlement to a TDIU since April 15, 2021 is dismissed. FINDINGS OF FACT 1. Prior to April 15, 2021, the Veteran's service-connected disabilities are reasonably shown to prevent him from obtaining or maintaining gainful employment. 2. From April 15, 2021, the Veteran's service-connected disabilities totaled a combined 100 percent schedular rating. CONCLUSIONS OF LAW 1. The criteria for a TDIU prior to April 15, 2021 have been met. 38 U.S.C. §§ 5110 (a), 5107(b); 38 C.F.R. §§ 3.400, 4.16. 2. Entitlement to a TDIU from April 15, 2021 is moot. 38 U.S.C. § §§ 1155, 5107, 1114; 38 C.F.R. § §§ 3.340, 3.341, 4.15, 4.16; Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008); Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to May 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the Undersigned Veterans Law Judge (VLJ) at a Central Office hearing. A transcript of the hearing has been associated with the electronic file. The Board observes that a September 2015 rating decision granted a TDIU effective January 1, 2016 which was the day the Veteran's 100 percent schedular evaluation ends. An October 2015 rating decision, however, found that the TDIU was assigned in error and determined that the benefit was not warranted. Notably, the TDIU never went into effect. During the December 2020 Board hearing, the VLJ noted the procedural history and recharacterized the issue to entitlement to a TDIU; and it is reflected as such above. 1. Entitlement to a TDIU prior to April 15, 2021 2. Entitlement to a TDIU since April 15, 2021 VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation 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 the Veteran meets the schedular requirements. 38 C.F.R. § 3.340. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities will be considered as one disability: (1) Disabilities of one or both upper extremities, or of 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). 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). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). 'Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; 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). Alternatively, if a veteran is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), the rating authority should refer the matter to the Director of the Compensation and Pension Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16 (b). The veteran is not required to show 100 percent unemployability; the question is whether he or she is unable to pursue a substantially gainful occupation. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Whether the veteran can actually find employment is not determinative, as the focus of the inquiry is on "whether the veteran is capable of performing the physical and mental acts required by employment." Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (emphasis in original). The Board cannot consider entitlement to TDIU on an extraschedular basis in the first instance, but it is required to ensure that all cases where there is evidence of unemployability due to service-connected conditions are referred to the Director for initial consideration under 38 C.F.R. § 4.16 (b). See Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran states that his service-connected disabilities, specifically his left knee disability, renders him unemployable. He asserts that a TDIU should be granted prior to April 15, 2021, more specifically effective from January 1, 2016 on the basis that his service-connected left knee disability prevented him from obtaining and maintaining substantially gainful employment. In this regard, the Board observes that the records reveal his left knee disability was assigned a 100 rating for based on convalescence and then subsequently assigned a single 60 percent rating as of January 1, 2016. Along with other service-connected disabilities, the combined disability rating was 90 percent, effective from January 1, 2016. A review of the record reveals that the Veteran met the schedular criteria for the grant of a TDIU on January 1, 2016. Indeed, the left knee disability is rated 60 percent and the evidence reasonably shows that the left knee disability prevented him from obtaining and maintaining substantially gainful employment. A December 2015 VA examination documents that the Veteran's left knee disability prevents the Veteran from navigating stairs as well as walking long distances and that such prevents him from gainful employment. The Board finds that the evidence collectively shows that a TDIU is warranted prior to April 15, 2021. The Board notes that from April 15, 2021, the Veteran is assigned a 100 percent combined rating for his service-connected disabilities. Consequently, the Board need not consider whether his combination of service-connected disabilities warrants a 100 percent TDIU rating as this combination already warrants a 100 percent combined schedular rating. See 38 C.F.R. §§ 4.16 (a). As such, entitlement to a TDIU is dismissed as moot from April 15, 2021. Finally, to be as favorable as possible to the Veteran, the Board will allow the agency of original jurisdiction (AOJ) to assign the effective date for the grant of TDIU in the first instance both to take account of any newly implemented rating and to make as complete a record as possible so the Veteran can appeal the effective date assigned by the AOJ if he is not satisfied with it. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an AOJ decision, such an argument is unavailing unless a notice of disagreement is then of record as to the downstream issue of an effective date for the assignment of that rating"). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.