Citation Nr: 22014797 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 17-53 120 DATE: March 15, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities preclude her from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1978 to April 1984. This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2020, when it was remanded for further development. The Board notes that all other issues included in the October 2017 substantive appeal to the Board were decided in the January 2020 Board decision or were granted in full in a September 2019 rating decision; as such, they are no longer before the Board. VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his or her service-connected disabilities, from securing and following "substantially gainful employment" consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Because it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but 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, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran contends that she is unable to obtain and maintain substantially gainful employment due to her service-connected disabilities. The Veteran's migraine headaches are rated at 50 percent from March 28, 2014; degenerative arthritis/patellofemoral syndrome of the right knee is rated at 30 percent from November 1, 1995; painful scars of the right wrist, right knee, right lower abdomen associated with degenerative arthritis of the right knee is rated at 30 percent from March 28, 2014; right wrist status post excision of bony extostosis is rated at 10 percent from December 1, 1998; incisional neuroma of the right wrist is rated at 10 percent from December 1, 1998 to March 28, 2014; left knee instability associated with right knee degenerative arthritis is rated at 10 percent from March 28, 2014; left knee degenerative arthritis associated with right knee degenerative arthritis is rated at 10 percent from March 28, 2014; scars of the right knee and lower abdomen associated with right knee degenerative arthritis is rated at noncompensable from March 28, 2014. The Veteran's combined disability rating is currently 80 percent. Thus, the Veteran meets the schedular criteria for consideration of TDIU. 38 C.F.R. § 4.16(a). The remaining question, therefore, is whether the Veteran's service-connected disabilities render her unable to secure or follow a substantially gainful occupation. The Veteran's submitted employment information in October 2020 that shows she last worked in 2018 as a property management specialist at the Drug Enforcement Administration, a position she held for about 10 years. She also provided a statement regarding how her service-connected disabilities affect her ability to work, including needing to use a pain pump to manage the pain in the knees, as well as severe mobility issues due to her knees. In addition, due to her right wrist condition, she cannot type and has to use speech mode technology, and she has been using driving controls since 2015 to drive as she is unable to extend her right knee properly to operate the gas/brake pedal. She also stated she uses a Victory 10 mobile scooter to assist with ambulation, and she had a stair lift installed in her home as she is unable to climb stairs. VA knee examinations also indicate several functional limitations due to the Veteran's disabilities. A July 2019 knee examination notes the Veteran's right knee is in constant pain, rated 10/10, with swelling and discoloration. The Veteran reported being on a pain pump for her right knee since November 2017 and that she has increased pain with extended standing, walking, and sitting. The examination report also noted the Veteran uses a knee brace and scooter on a regular basis, and cane on a constant basis due to bilateral knee issues. A VA headaches examination from July 2019 also notes severe symptoms, such as headache pain rated 10/10, photophobia, nausea, vomiting, and blurry vision. The examination report also indicated the Veteran has very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. The Veteran's migraine headaches were noted to affect her ability to work due to disturbances of attention and interference with concentration due to the pain. Moreover, the January 2020 Board remand requested an opinion regarding the functional impact of the Veteran's service-connected disabilities on her abilities to obtain gainful employment. The opinions noted several limitations due to the Veteran's disabilities, including her knees not allowing regular use of stairs or kneeling/squatting, her service-connected painful abdomen scar would make it difficult for her to sit, and use of her right wrist would need to be minimized. While these disabilities may not fully preclude all work, the Board finds that it is at least as likely as not that they would preclude the Veteran from securing and following a substantially gainful occupation, i.e., one where she would be working hours and making a salary as would meet or exceed the current poverty threshold. The Veteran's work history shows her position required some physical labor. The Veteran's service-connected bilateral knee conditions cause severe mobility limitations as well as restrictions regarding sitting, walking, standing, and climbing stairs, her abdomen scar makes it difficult for her sit, and her right wrist disability makes it very difficult for her to type. In addition, the severity and frequency of the Veteran's migraine headaches would make it difficult for the Veteran to pay attention and concentration during any job. The Board finds that the Veteran's service-connected disabilities would make it extremely challenging for her to perform any sort of occupational physical exertion or function effectively in any work environment. Thus, in light of the above, and resolving reasonable doubt in favor of the Veteran, the Board finds the evidence is in approximate balance with respect to the issue of whether the Veteran is capable of obtaining and maintaining substantially gainful employment. The claim for TDIU is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.