Citation Nr: 21039940 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-30 103 DATE: July 1, 2021 ORDER Entitlement to a rating higher than 30 percent for service-connected major depressive disorder (MDD) not otherwise specified, claimed as depression, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Prior to his death, the Veteran's depressive disorder was formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. 2. Prior to his death, the Veteran's service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment consistent with his education and occupational background. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent for service-connected depressive disorder not otherwise specified, claimed as depression, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9434. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1973 to May 1976. Unfortunately, he passed away in October 2016. The appellant is his surviving spouse and has been substituted for the Veteran in this appeal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). Prior to his death, he filed a timely notice of disagreement (NOD) regarding an increased rating for his service-connected major depressive disorder and entitlement to a TDIU. 1. Entitlement to a rating higher than 30 percent for major depressive disorder Disability ratings are determined by applying a schedule of ratings that is based on the average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's major depressive disorder (MDD) was rated pursuant to the criteria under 38 C.F.R. § 4.130, Diagnostic Code 9434. See General Rating Formula for Rating Mental Disorders (General Rating Formula). Relevant to the issue on appeal, under the General Rating Formula, a 30 percent disability rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory, e.g., retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. The next higher and maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place; or memory loss for names of close relatives, own occupation, or own name. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. Further, the United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. Prior to his death, the Veteran contended entitlement to a disability evaluation higher than 30 percent for his service connection depressive disorder. Specifically, he contended that the constant pain he experienced caused his depression. See Statement in Support, April 2011. Additionally, he was depressed due to multiple physical limitations caused by chronic pain including not being able to walk and shop with his family, the inability to attend family functions because of the ankle and back pain, the inability to climb bleachers, and the inability to find work due to his t-brace. See Statement in Support, November 2011. At the time of the Veteran's death, he was in receipt of a 30 percent disability rating for major depressive disorder not otherwise specified, claimed as depression, as secondary to his service connected osteoarthritis, right ankle with cyst, status post-surgical fusion based on a mental condition having been formally diagnosed, but symptoms not severe enough to either interfere with occupational and social functioning or to require continuous medication. Symptoms included anxiety, chronic sleep impairment, and depressed mood. A June 2013 rating decision granted service connection, with an evaluation of 30 percent, effective May 3, 2011. During a July 2011 primary care visit, the Veteran was screened for depression and was found negative. During a November 2011 MOVE! Initial consultation, the Veteran reported general unhappiness and depression. A physician note from January 2012 reported the Veteran stated improvement in his adjustment disorder. He denied suicidal or homicidal ideation. The Veteran denied acute anxiety or depression symptoms. An addendum medical note from April 2012 reported a negative screening for depression. The Veteran had a VA mental examination in May 2013 and was diagnosed with depressive disorder not otherwise specified. The Veteran was administered the Beck Depression Inventory-II, which resulted in a total severity of 40, suggestive of severe depressive symptoms. The Veteran reported being married to his current wife since 1992 and described his relationship with his wife as "very good," and his relationship with his daughters as "real close." He reported spending the majority of his time with his spouse, children, and friends. He noted fishing with his friends 2-3 times a month. Once a week his friends come to his house to visit. The Veteran was noted as casually dressed, grooming and hygiene within normal limits. He was oriented to person, place, and time. Insight was fair, overall and speech was clear, coherent, and goal directed. He denied any history of suicidal ideation or attempts. The examiner opined that a mental condition was formally diagnosed, but symptoms were not severe enough to either interfere with occupational and social functioning or to require continuous medication. The examiner noted symptoms of depressed mood, anxiety, and chronic sleep impairment. The examiner noted that his symptoms did not cause clinical impairment in social functioning, however, prospective occupational functional could be mildly affected. The Veteran was provided a General Medical Disability Benefits Questionnaire in May 2013. No psychiatric conditions were noted. A physician note from June 2013 noted his adjustment disorder had improved, no need for medication at this time. During a behavioral health visit in June 2014, the examiner noted that based on the reported symptoms, the Veteran did not appear to meet the criteria for a depressive disorder. However, he did report significant depressive symptoms which may suggest problems like sleep-disturbance, pain, or other psychiatric problems. The Veteran reported that his depressive symptoms make it somewhat difficult to do his work, take care of things at home, or get along with others. The Veteran reported passive suicidal ideation in the last year, with no current plan. The Veteran reported symptoms consistent with a generalized anxiety disorder, including excessive worry, difficulty controlling worry, restlessness, tense, tiredness, difficulty concentrating, irritability, and difficulty sleeping. A mental health clinic visit from September 2014 noted the Veteran had a negative screen for depression. He reported riding his neighbor's bike in the evening for exercise and reported feeling better, no depression, anxiety, or suicidal ideation. The physician noted that the Veteran had no depressive symptoms, minimal anxiety, and had agreed to contact the VA if he needed further assistance. The Veteran was seen by the behavioral health clinic in November 2014 with reports of depressed mood related to change in physical functioning. The Veteran reported the limited mobility due to pain in the knees and ankle interferes with his ability to engage in pleasurable activities with family. The Veteran reported sleep disturbance, and fatigue. He denied interest in medication and requested to continue to be followed by his current provider. Mood was noted as depressed, speech appropriate. The Veteran reported no current suicidal or homicidal ideation, plans, or intentions. He did report a history of suicidal ideation, with his last suicidal ideation in "early August 2014," with no plan or intent. The examiner found the presence of risk as minimal, but ongoing monitoring was warranted. He noted the Veteran had fleeting thoughts but no serious contemplation of self-harm. His PHQ-9 score was 11, which provides for the physician to use clinical judgment about treatment based on Veteran's duration of symptoms and functional impairment. The examiner noted the Veteran's score on screening instruments suggest moderate levels of distress, manifest in depressive symptoms and behavior. The plan was to alert his current provider for follow-up. A behavioral health follow-up note from January 2015 reported a PHQ-9 score of 2, which equates to minimal depressive symptoms. The Veteran reported that his depressive symptoms do not make it difficult to do his work, take care of things at home, or get along with others. The Veteran reported right ankle and left knee pain that interfere with his ability to walk, sleep, and enjoy life. He noted he was not taking medications for depression. The Veteran denied current, active suicidal ideation. A primary care note from February 2016 provided a depression screen which was negative. An April 2016 medical record noted the Veteran had no suicidal or homicidal ideation. Everything is "much better, going good." The Veteran was asked about any new or different mental health concerns and he denied any present concerns. An April 2016 care coordination home telehealth medical record noted the Veteran lived with his spouse. The Veteran reported difficulty with preparing meals, housework, shopping, and transportation. His depression was noted to interfere with his ability to function and maintain independence. The Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Board finds that the Veteran's symptoms are consistent with a rating of 30 percent, but no higher. The most probative evidence of record illustrates that the severity of the Veteran's psychiatric symptoms warranted a 30 percent rating, and no higher. He reported symptoms such as depressed mood, anxiety, sleep impairment, irritability, fatigue, and chronic pain. His depressive disorder was not manifested by symptomatology more nearly approximating occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands, impaired judgement; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, to warrant a 50 percent rating. In making this finding, the Board accords significant probative weight to the VA examination in May 2013 that found a mental condition was formally diagnosed, but symptoms were not severe enough to either interfere with occupational and social functioning or to require continuous medication. The Veteran noted quality relationships with his wife and kids and noted enjoyment in activities with friends. The record following his May 2013 VA examination notes that on many occasions, the Veteran did not experience any depressive symptoms. In fact, the June 2014 behavioral health examiner noted that based on the reported symptoms, the Veteran did not appear to meet the criteria for a depressive disorder. He more likely met the criteria for a generalized anxiety disorder. Additionally, the Board notes that while the record shows passive suicidal ideation during the June 2014 and November 2014 visits, the Veteran denied suicidal ideation during visits in January 2012, May 2013, September 2014, January 2015, and April 2016. Further, he did not experience the majority of the symptoms like or similar to those listed under the 70 percent criteria, such as speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, unprovoked irritability with periods of violence, spatial disorientation, neglect of personal appearance and hygiene, or any symptoms like or similar to the 70 percent criteria. Nevertheless, even considering these passive suicidal ideations, those symptoms did not rise to a level to cause occupational impairment with reduced reliability and productivity. In Bankhead, citing from various sources, the Court first looked at how the term "suicidal ideation" is defined. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The Court summed it up stating that "both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death." Id. at 20. In applying the meaning of suicidal ideation to the rating criteria, the Court noted that suicidal ideation is only listed as a symptom in the criteria for a 70 percent disability rating. Id. There are no analogous at the lower evaluation levels and there are no descriptors, modifiers or indicators as to suicidal ideation in the 70 percent criteria (including no specific mention of "active" suicidal ideation, "passive" suicidal ideation, suicidal "intent," suicidal "plan," suicidal "prepatory behavior," hospitalization, or past suicide attempts). Id. Thus, the Court found "the language of the regulation indicates that the presence of suicidal ideation, alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Id. The Court then turned to the specifics of the case in Bankhead. The Court found that, insofar as the Board required evidence of more than thought or thoughts to establish the symptom of suicidal ideation, it erred. Id. at 20. The Court found that the Board erroneously grafted the risk of self-harm onto the symptom of suicidal ideation in the criteria for a 70 percent evaluation. In other words, a veteran need not be at a risk, whether a high or low risk, of self-harm to establish the criteria of suicidal ideation. Id. at 20-21. The Court also found that the Board erred in applying "hospitalization" as the standard for assessing the severity of that symptom. Id. Rather, the evaluation of mental disorders requires consideration of the effects of each of the veteran's mental symptoms on his or her social and occupational situation to determine the severity of the symptom. Id. Put differently, although suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, it does not follow that suicidal ideation automatically warrants a 70 percent disability rating. The focus is on whether those suicidal ideations and his other symptoms are of the severity and frequency to cause occupational and social impairment with deficiencies in most areas. As such, the Board finds that the notation of passive suicidal ideation in the June 2014 and November 2014 records, in conjunction with his other MDD symptoms, does not rise to a level of occupational and social impairment with deficiencies in most areas. Suicidal ideation is one factor to consider when assigning a 70 percent rating and the record does not show any other symptoms that would warrant a 50 percent rating, let alone a 70 percent rating. Again, the totality of his symptoms did not rise to a level of causing occupational and social impairment with reduced reliability or productivity, or with deficiencies in most areaseven considering all the symptoms outlined above. A 100 percent evaluation is also not warranted for the period on appeal. The Veteran did not show symptoms consistent with total occupational or social impairment at any time during the appeal period. He did not have gross impairment of thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, or disorientation to time or place. Not one of the medical records illustrate that the Veteran's psychiatric disorder symptoms resulted in total occupational and social impairment. Therefore, the Board finds that the Veteran's depressive disorder symptoms more nearly approximated the criteria for a rating of 30 percent and no higher, prior to his death. In arriving at this conclusion, the Board has carefully considered the lay assertions of the Veteran. The Board understands the appellant's belief that the Veteran's symptoms warranted a disability rating higher than 30 percent. However, the Board considered both the lay and medical evidence in reaching this conclusion. Even considering the lay reports, the most probative evidence shows occupational and social impairment as evidenced by his 30 percent rating, but it does not show that he had occupational and social impairment with reduced reliability due to the reported symptoms. Such competent evidence concerning the nature and extent of the Veteran's psychiatric disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which the disability is evaluated. Moreover, as the May 2013 examiner had the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability, and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. For these reasons, a rating higher than 30 percent for MDD is denied. 2. Entitlement to a total disability rating based on individual unemployability At the time of the Veteran's death, a claim for TDIU was on appeal. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any 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. 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 question in a TDIU claim is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. A high disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (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 the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 477 (2009). The Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected condition and advancing age, which would justify a TDIU due solely to the service-connected conditions. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a "living wage." Faust v. West, 13 Vet. App. 342 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and 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). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). The Board observes at the time of the Veteran's death, he was service connected for osteoarthritis, right ankle with cyst, status-post surgical fusion, evaluated at 40 percent, effective May 3, 2011; depressive disorder not otherwise specified, claimed as depression, evaluated at 30 percent, effective May 3, 2011; left knee osteoarthritis post total knee replacement, associated with osteoarthritis, evaluated at 100 percent effective April 22, 2015 and 30 percent from June 1, 2015; myofascial pain syndrome, lumbar spine, claimed as back pain, evaluated at 10 percent from June 27, 2008; bilateral tinnitus, evaluated at 10 percent, effective May 3, 2011; surgical scars (3), medial and lateral aspect, right ankle, evaluated as noncompensable, effective October 23, 2007; bilateral hearing loss, evaluated as noncompensable, effective May 3, 2011; surgical scar left knee associated with left knee osteoarthritis post total knee replacement, evaluated as noncompensable, effective April 22, 2015. His combined rating was 70 percent from May 3, 2011, 100 percent from April 22, 2015, and 80 percent from June 1, 2015. Thus, the Veteran met the minimum percentage requirements of 38 C.F.R. § 4.16(a) during the period on appeal. As such, the Board must now determine if the evidence showed that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to his death. After a full review of the record, the Board finds that is the case here. As such, entitlement to a TDIU is granted. Turning to the question of whether the Veteran was unable to obtain and maintain any form of gainful employment consistent with his education and occupational experience, the Veteran reported in his November 2011 application for TDIU that he completed 3 years of high school and then obtained his GED. He reported he left his last employment position due to his right ankle with T-brace in October 2007. He noted that he had looked for work, but he could not stand or walk for long periods of time due to back pain and ankle pain. An Ankle Conditions VA examination was completed in November 2011. Diagnoses of right ankle sprain, ankylosis of the right ankle, and osteoarthritis of the right ankle were noted. The Veteran noted while working in 2003 he experienced swelling and pain in his right ankle and underwent surgery for his ankle in October 2007. He described his flare-ups as having constant pain and edema. Constant use of a brace and cane were noted. The examiner found that the impact of the ankle conditions on the Veteran's ability to work was more likely than not limiting his ability to work, because he cannot weight bear more than 30 minutes without further aggravation of his edema, which does not dissipate. The examiner further opined that the Veteran's edema was more likely than not aggravating the overall pain and also pruritus associated with the ankle and surgical scars. In correspondence received from the Veteran in November 2011, he noted that he tried to look for work, but it is hard to walk around with the boot and T-brace that he has to wear at all times. He also noted that due to his surgery on his right ankle, he is depressed because he cannot do what he used to do. In March 2012, the Veteran was afforded a Hearing Loss and Tinnitus VA examination. The examiner found that the Veteran's tinnitus would not impact his ability to work. Regarding his hearing loss, the Veteran was diagnosed with bilateral sensorineural hearing loss in the 500-4000 Hertz frequencies and the 6000 Hertz or higher frequencies. The examiner noted the Veteran's hearing loss would impact his ability to work, in that he cannot hear well. The Veteran underwent a General Medical VA examination in May 2013. A back (thoracolumbar spine) condition was noted, as well as an ankle condition. The examiner noted the Veteran has lumbar spine osteoarthritis with spondylolysis of L5 in addition to right ankle ankylosis, post arthrodesis. Overall, the examiner found that the Veteran has "some restrictions due to his service-connected conditions. However, these restrictions do not seem to preclude the Veteran from securing gainful employment; particularly, his restrictions do not preclude any type of sedentary employment. The Veteran has not worked since 2007." A Mental Disorders DBQ was completed in May 2013. A diagnosis of depressive disorder not otherwise specified was noted. The examiner noted a mental condition has been formally diagnosed, however, the symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. In July 2013, a private doctor provided an opinion that the Veteran was unable to work as a custodian or any other job that would require him to drive, stand, or walk. He noted the Veteran was unable to tolerate driving and has pain both with activity and at rest. The physician noted he has advanced ankle arthritis with "basically no ankle motion." In addition, after undergoing a subtalar joint arthrodesis in 2007, he had prominent hardware. The doctor concluded that the combination of the Veteran's conditions was very disabling, despite efforts to improve the situation by using a cane, medications, and an aggressive double upright brace. In August 2014, his previous employer noted he worked full time from February 2003 to January 2008 as a Custodian. The reason noted for termination was Family Medical Leave Act (FMLA) leave was exhausted. During an orthopedic consultation note from December 2014, the Veteran reported severe ankle pain, rated at an 8/10, which is continuous, and worse with weight-bearing, walking, and standing. The Veteran underwent a Knee and Lower Leg Conditions VA examination in August 2015. The Veteran noted daily baseline pain at 8/10. He noted the use of a cane on a regular basis. The examiner found that the Veteran would be unable to participate in prolonged sitting or standing, needs modification of activity, and uses a cane for balance for any walking activity required. Resolving reasonable doubt in favor of the appellant, the Board finds that the competent and credible evidence of record is in relative equipoise that the Veteran was unemployable due to his service-connected disabilities. The Veteran's employment history included working as a gas company foreman, welder/gas regulator, and a custodian. He had not been employed since 2007. He had a GED and no vocational training. The evidence reflects that the Veteran's employment history only included work that required the ability to walk, stand, and bend. The record does not show any evidence that he ever worked in a sedentary employment environment, nor did he exhibit the skills to do so. His reduced reliability and productivity, anxiety, and severely reduced mobility due to his right ankle disability would have rendered it impossible for the Veteran to return to his prior employment as a custodian or welder. The question of a TDIU is whether the Veteran is capable of performing the physical and mental acts required by employment and not whether the Veteran is, in fact, employed. The Board has taken the Veteran's education, training, vocational history, and functional capacity into account in determining that neither labor-intensive nor sedentary jobs would be appropriate for him due to his service-connected disability. Regarding his physical limitations, the July 2013 private medical doctor found that the Veteran could not complete any job that would require him to walk, stand, or drive. The August 2015 VA examiner noted his left knee osteoarthritis would impact his ability to participate in prolonged sitting or standing, so he would require modification of activity. From the record, this would limit both his ability to perform physical or sedentary positions. Further, his chronic pain associated with his right ankle disability and back disability would interfere with his ability to concentrate on work tasks. Therefore, the Veteran's service-connected disabilities would have inhibited him from obtaining and sustaining substantially gainful employment. (Continued on the next page) Thus, considering the benefit of the doubt, the Board finds that entitlement to a TDIU is granted for the period on appeal. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. § 4.16(b). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.