Citation Nr: 21041052 Decision Date: 07/08/21 Archive Date: 07/07/21 DOCKET NO. 10-44 038A DATE: July 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is granted. INTRODUCTION The Veteran served on active duty from January 1972 to July 1978. In March 2017, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). The VLJ who heard the Veteran's testimony is no longer with the Board. The Veteran was notified of this fact and elected to continue his appeal before a new VLJ without a second hearing. A transcript of the March 2017 proceeding is part of the evidentiary record. In August 2018, the Board denied the Veteran's TDIU claim. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (CAVC). In August 2019, the CAVC remanded the case. Thereafter, the Board remanded the case to the RO in November 2019 and February 2021 for additional development. This case has since been returned for further appellate review. FINDING OF FACT The Veteran has met the threshold percentage requirements and has been unable to maintain any form of substantially gainful employment consistent with his education and occupational background as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As explained below, the Board has determined the evidence currently of record is sufficient to substantiate the Veteran's claim for entitlement to TDIU. Therefore, no further development is required under 38 U.S.C. §§ 5103, 5103A or 38 C.F.R. § 3.159 before the Board decides the claim. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. "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 (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to a 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. TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Factual Background and Analysis As a threshold matter, the Board notes service connection has been established for unspecified depressive disorder and unspecified anxiety disorder, associated with left knee degenerative joint disease (DJD), rated at 50 percent disabling; left knee DJD, rated as 20 percent disabling; left knee instability, rated as 10 percent disabling; right knee DJD with arthralgia associated with the left knee DJD, rated as 10 percent disabling; and right knee instability, rated as 10 percent disabling. The Veteran's combined rating is 70 percent. Further, the Veteran's left knee disabilities, right knee disabilities, and acquired psychiatric disorders share a common etiology. As such, the Veteran has satisfied the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). After consideration of the record, and resolving all reasonable doubt in favor of the Veteran, the Board finds his service-connected bilateral knee disabilities and acquired psychiatric disorders have been sufficiently disabling as to render the Veteran unable to maintain substantially gainful employment consistent with his education and occupational background. In his application for TDIU benefits, the Veteran stated he worked in a clerical position until March 31, 2015. After that date, the Veteran asserts he could no longer work due to his service-connected disabilities. The Veteran's job, along with most other jobs, required the Veteran to be able to attend a normal 8-hour work day. The Board also notes the Veteran has a high school diploma, and no other education or training. At his March 2017 hearing, the Veteran testified he can't drive a vehicle, falls frequently, is unable to sit or stand for long periods of time, has anxiety attacks, and problems focusing. The Veteran also testified he had safety concerns regarding his work performance. The Veteran had VA knee examinations in June 2014, June 2017, and December 2019. At the most recent knee examination in December 2019, the Veteran described the pain in his knees as a "toothache like pain" and rated his bilateral knee pain as a 9-10 out of 10. He experienced sleep issues due to pain and limited mobility after prolonged standing or sitting. The Veteran also reported flare-ups with daily activities such as getting out of the car, standing, or putting on his clothes. At the June 2014 examination, the Veteran reported issues related to chronic pain and sleep impairment due to his bilateral knee pain. The examiner concluded the Veteran would have difficulty doing repetitive squatting, crouching, kneeling, and climbing up and down stairs. The Veteran also attended VA psychiatric examinations in January 2015 and January 2021. Following the January 2015 examination, the examiner concluded the Veteran's "occupational functioning has diminished over the past few years and he has had to reduce his work schedule to only three days a week in order to compensate for his chronic knee pain." The January 2021 examiner stated the Veteran has occupational and social impairment with reduced reliability and productivity, noting the Veteran has chronic sleep impairment, flattened affect, disturbances of mood and motivation, and difficulty establishing and maintaining effective work and social relationships. The examiner also observed the Veteran ambulated slowly with a cane and showed signs of subtle discomfort from prolonged sitting. In sum, affording the Veteran the benefit of all reasonable doubt, the Board is satisfied the evidence shows his service-connected bilateral knee disabilities and acquired psychiatric disorders are sufficiently severe to render him unable to maintain any form of substantially gainful employment consistent with his education and occupational background. Accordingly, a TDIU is warranted. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nestander, Jessica S. 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.