Citation Nr: 21040341 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 11-11 265 DATE: July 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on a schedular basis from June 23, 2003 to November 19, 2003 is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected left knee degenerative joint disease (left knee disability) is remanded. Entitlement to an initial rating in excess of 10 percent from June 23, 2003 to November 19, 2003, and in excess of 30 percent from January 1, 2005 for service-connected right knee degenerative joint disease (right knee disability) is remanded. Entitlement to an initial rating in excess of 20 percent for service-connected lower back disability is remanded. FINDING OF FACT Resolving doubt in favor of the appellant, the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities from June 23, 2003 to November 19, 2003. CONCLUSION OF LAW From June 23, 2003 to November 19, 2003, the criteria for a TDIU were met on a schedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1954 to March 1956. The Veteran passed away in November 2013. The appellant, who is the Veteran's widow, was granted substitution as the claimant. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision. In December 2020, the appellant and her daughter testified at a video-hearing before the undersigned. A transcript is of record. 1. Entitlement to a TDIU on a schedular basis from June 23, 2003 to November 19, 2003 is granted. TDIU may be assigned 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. If there is only one service-connected disability, this disability should be rated at 60 percent or more, but if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 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 or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system (for example, orthopedic); (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The TDIU claim stems from the claims for higher initial ratings for knees and back, and therefore goes back to June 23, 2003. The time period for consideration of TDIU is June 23, 2003 to November 19, 2003, as the Veteran was already in receipt of SMC or TDIU from November 20, 2003 forward. From June 23, 2003 to November 19, 2003, the Veteran was service-connected for a right knee disability, rated as 10 percent disabling; a left knee disability, rated as 10 percent disabling; a left foot disability, rated as 20 percent disabling; a right foot disability, rated as 20 percent disabling; and a lower back disability, rated as 20 percent disabling. His combined evaluation was 60 percent. As his service-connected disabilities are orthopedic, the disabilities are considered one disability for purposes of the schedular requirements. Accordingly, the Veteran met the schedular TDIU requirement from June 23, 2003 to November 19, 2003. In this case, resolving all doubt in favor of the appellant, the Veteran was unable to obtain and maintain substantially gainful employment due to his service-connected disabilities from June 23, 2003 to November 19, 2003. The Veteran reported that he last worked full-time in 1996 and that he became too disabled to work December 1996. He had a high school education. His full-time employment history was 40 years spent working as an operator and welder at Whirlpool. See October 2009 TDIU Application. The Veteran's wife reported that the Veteran's "health had gotten to the point that he could not continue to work due to the physical demands of his job duties." See October 2009 Statement. In December 2020, the appellant testified that the Veteran became wheelchair bound in 2000. The Veteran's daughter testified that the Veteran required the assistance of the appellant to complete activities of daily living during that time period. The Veteran's daughter reported that the Veteran had retired due to medical reasons. The Veteran's treatment records around the relevant time period show that he had difficulty with ambulation, limitations in walking and standing, and limitations in bending and twisting. Later VA examinations show the Veteran's reports of numbness and pain in his feet for a long time with inability to walk during flare-ups, reports of numbness down his legs, problems with falls, and limitations in walking even with a walker. See March 2008 VA Examination Report. A statement from the Veteran's friend shows that the Veteran used a walker and still was only able to walk a short distance. See August 2009 Statement. The Veteran reported that he used a walker for stability around his home and a wheelchair when out, that he needed assistance with daily activities of living, and that he had extreme weakness and pain in his back and knees. See September 2009 Statement. Given the Veteran's combined functional impairment due to his service-connected disabilities, including problems with even limited standing and walking, and considering his educational and occupational history, the Board finds the evidence is at least in approximate balance as to whether the Veteran's service-connected disabilities prevented him from securing and maintaining gainful employment throughout the claims period. Accordingly, TDIU is granted from June 23, 2003, to November 19, 2003. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for service-connected left knee degenerative joint disease (left knee disability) is remanded. 2. Entitlement to an initial rating in excess of 10 percent from June 23, 2003 to November 19, 2003, and in excess of 30 percent from January 1, 2005 for service-connected right knee degenerative joint disease (right knee disability) is remanded. 3. Entitlement to an initial rating in excess of 20 percent for service-connected lower back disability is remanded. In the February 2021 remand, the Board directed that the Veteran's at-home nursing care treatment records be obtained with the assistance of the appellant. In April 2021, the appellant submitted a March 2021 authorization for such records. However, the claims file does not show that such records were obtained. Accordingly, remand is appropriate to obtain these records. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the appellant may identify relevant to the claims, including the at-home nursing care treatment records for which the appellant provided a March 2021 authorization form. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Purcell, Amy 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.