Citation Nr: 22012244 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 15-46 405 DATE: March 3, 2022 ORDER Entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1966 to January 1968 and with the Air Force from January 1968 to January 1972 and from October 1972 to July 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). In its June 2020 decision, the Board found that the issue of entitlement to TDIU had been raised by the record as part of the evaluation questions decided in that same decision. Rice v. Shinseki, 22 Vet. App. 447 (2009). The matter was remanded for proper notice to the Veteran and development. In a November 2021 decision the AOJ denied entitlement to TDIU. The matter is now before the Board. TDIU is awarded where service-connected disabilities render a Veteran unable to secure and follow substantially gainful employment. Basic eligibility is established where a Veteran has a single service-connected disability rated at least 60 percent disabling, or multiple service-connected disabilities rated a combined 70 percent disabling, with at least one of the conditions rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Unemployability is found when a Veteran cannot secure or retain "substantially gainful employment." While this is not defined in the regulations, "marginal employment" is excluded from the concept. Based on this, courts have concluded that substantially gainful employment is any occupational activity that provides a living wage above the current poverty level, a position now reflected in the regulations. 38 C.F.R. § 4.16(a); see, e.g., Faust v. West, 13 Vet. App. 342 (2000). Inability to maintain employment in a former occupation or to secure it in a more lucrative or preferred occupation does not equate to unemployability; the standard is inability to maintain any substantially gainful employment occupation, rather than inability to be employed in a former or preferred occupation. A finding of entitlement to TDIU is dependent upon consideration of the impact of a Veteran's service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as his work history, education, and vocational training. 38 C.F.R. § 4.16. Age is not a factor. 38 C.F.R. § 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of a service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Throughout the period on appeal, the Veteran has met the threshold requirements for consideration of TDIU under 38 C.F.R. § 4.16(a), with a combined 60 percent disability rating. Importantly, the regulation allows disabilities affecting a single body system, such as orthopedic, to be considered a single disability for eligibility purposes. Service connected bilateral pes planus (30 percent), right knee (10 percent), left knee (10 percent), and right hip (two separate 10 percent ratings) combine to 60 percent when the bilateral factor is considered. 38 C.F.R. §§ 4.25, 4.26. Additionally, the Veteran is in receipt of a 10 percent rating for tinnitus throughout the appeal period. Further, in light of increased ratings for pes planus (50 percent effective October 20, 2021), an additional right knee evaluation (10 percent effective October 18, 2018), and an additional 10 percent rating for the right hip effective October 20, 2021, the Veteran's combined evaluation increased to 70 percent in October 2018 and 80 percent in October 2021. Noncompensable (0 percent) evaluations are assigned for bilateral hearing loss, pseudofolliculitis barbae (PFB), and a scar of the right knee. The Board incorrectly found extraschedular referral under 38 C.F.R. § 4.16(b) was required in the June 2020 remand. Referral was not necessary, though the AOJ did in fact comply with that directive. A November 2021 opinion was received from the Director, Compensation and Pension Service. The Board notes that the rather pedantic opinion is based on analysis of the facts for a different Veteran, citing findings and evidence completely irrelevant to the matter at issue here. No probative value of any kind may be assigned the Director's memorandum; the clear error by the Director is harmless, however, in light of the finding above regarding schedular entitlement. At a December 2011 VA flat foot examination, the Veteran reported experiencing pain on use of both feet. There was no swelling and no pain on manipulation of the feet. His symptoms were relieved by orthotics. The VA examiner noted that the Veteran's flatfoot condition did not impact his ability to work. At a Board hearing in May 2013, in the course of his testimony relating to entitlement to service connection for bilateral pes planus and entitlement to service connection for an ankle disability, the Veteran testified that it was hard for him to walk sometimes and that he was currently unemployed. The Veteran underwent a VA hip and thigh conditions examination in December 2013. The Veteran reported experiencing near daily pain in his right hip which limited his physical activity; extension was limited to 20 degrees with objective evidence of painful motion. At a December 2013 VA knee examination, the VA examiner noted the Veteran's limitation of flexion of the knees, pain on movement of the knees and that the Veteran's knee disabilities interfered with sitting, standing, and weight-bearing. The Veteran also underwent a VA flatfoot examination in December 2013. The VA examiner noted the Veteran had pain on use of his feet and pain on manipulation of the feet. His symptoms were not relieved with arch supports. At the time of these examinations, the Veteran was noted to use a cane as a normal mode of locomotion. The Veteran's right hip condition, bilateral knee condition, and bilateral pes planus were noted to impact his ability to work in that he was unable to lift more than 25 pounds, unable to walk more than 50 yards at one time, could sit for no more than 30 minutes, and could stand for no more than one hour at a time. At July 2015 VA hip and thigh and flatfoot examinations, the Veteran's disabilities were noted to impact his ability to perform occupational tasks as it was determined that he could not sit or stand for prolonged periods and had limitations in squatting due to his hip disabilities. His bilateral pes planus was found to have no impact on his ability to perform occupational tasks. The Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability in August 2018. He indicated that he last worked full time in June 1995 as a telephone repairman and that his service-connected conditions prevented him from securing or following substantially gainful employment. The Veteran indicated that he had completed high school and had no other education or technical training. The Veteran underwent a VA foot conditions examination in December 2019 and in October 2021. Both VA examiners stated that the Veteran's bilateral pes planus impacted his ability to work as he was unable to stand or walk for periods that exceed twenty minutes, but that sedentary work was not affected by the foot pain. The Veteran underwent VA knee examinations in October 2018 and in October 2021. The October 2018 VA examiner stated that knee pain and weakness cause the Veteran to have difficulty walking, standing for long periods and climbing and descending stairs. The VA examiner stated that these functional deficits cause the Veteran to move slower with less efficiency and thereby decrease his productivity levels. The October 2021 VA examiner stated that the Veteran's knee pain causes difficulty with jobs that require standing and walking for periods that exceed twenty minutes and noted that sedentary work was not affected by his knee pain. VA treatment records note the Veteran reported that he retired from the phone company in 1995; he had been a telephone repairman for about 25 years. Regarding the use of the phrase "sedentary employment," VA uses the term sedentary work or employment in discussions of ability to secure and follow a substantially gainful occupation. The phrases sedentary work or sedentary employment are not included in the current statutes or regulations concerning VA benefits. Withers v. Wilkie, 30 Vet. App. 139, 142 (2018). When a VA examiner describes certain types of functional limitations and still opines that a veteran is capable of sedentary work, the Board may need to determine whether a common-sense inference can be drawn that the concept of sedentary work, as understood by the examiner, does not encompass the physical or mental acts that a veteran is incapable of performing. Id. at 147-148. The ability to perform various forms of work can be a relevant consideration, but the Board must explain how an examiner's description of a veteran's specific functional limitations supports a conclusion that a veteran is able to secure or follow a substantially gainful occupation consistent with his education, training, and work history. Id. at 142. Here, the examiner's use of the term was in the context of reporting functional limitation regarding the Veteran's physical abilities. The term as used in these reports meant that the Veteran could work at a desk or similar setup, providing the position involved sitting with standing or walking for periods limited to no more than 20 minutes. Based on the evidence of record, the Board finds that the Veteran is unemployable due to his service-connected bilateral pes planus, bilateral knee disabilities and right hip disability. He is unable to sit or stand for more than 20 minutes at a time. He is unable to walk more than 50 yards. The Veteran's last job was as a telephone repairman. He has a GED and has no further education or technical training. Although the October 2021 VA examiner determined the Veteran would be able to perform sedentary work, the Board finds the combination of his service-connected disabilities, limited physical functioning, his education, and his limited work history as a telephone repairman prevent him from securing and following substantially gainful employment. Therefore, entitlement to a TDIU is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger, 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.