Citation Nr: 22015335 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-28 724 DATE: March 17, 2022 ORDER Entitlement to a total disability rating based on individual unemployment is granted. FINDING OF FACT The Veteran's service-connected disabilities preclude him from substantially gainful employment consistent with the Veteran's education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to July 1982. In November 2021, the Veteran testified at a virtual hearing before the undersigned. A transcript of the hearing is of record. Entitlement to a total disability rating based on individual unemployment A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16 (a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran asserts that his service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities since July 1, 2014. In April 2016, the Veteran filed a claim for unemployability due to service-connected disabilities noting bilateral hammertoes and bilateral chondromalacia patella. At that time, service connection was in effect for bilateral hammertoe deformities at 50 percent disabling; left knee chondromalacia patella and osteoarthritis at 30 percent; right knee chondromalacia patella at 30 percent; left knee chondromalacia patella and meniscus tear at 30 percent; right knee chondromalacia patella (subluxation) at 30 percent; tender and painful scars left foot at 10 percent; and tender and painful scars right foot at 10 percent. The combined disability rating was 90 percent. Accordingly, the schedular criteria for TDIU were met. The June and October 2016 RO rating decisions denied entitlement to TDIU because the evidence did not show the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Additionally, the RO stated the Veteran's employer, Peninsula Petroleum, LLC stated the Veteran voluntarily quit. However, in his October 2017 notice of disagreement, the Veteran stated he left because he could no longer physically do the job due to his service-connected feet and knees and the only work he was skilled in were jobs where he had to be on his feet. On the Veteran's May 2018 Form 9, he stated that he was unable to sit or stand for very long due to pain in his knees and feet. He also stated that he was unable to find an employer who would accommodate his need to have frequent breaks. Additionally, at the Veteran's November 2021 virtual hearing, the Veteran testified that his service-connected feet and knees prevent employment because all of the jobs he is trained for require standing for long hours. A May 2016 VA knee examination noted functional impairment/loss due to the Veteran's bilateral knee disability as the inability to sit for prolonger periods of time and the need to get up and stretch the knees to prevent swelling. Additionally, the Veteran had lost the ability to run or walk more than 100 yards. A May 2018 VA knee examination noted the functional impact of the Veteran's knee disabilities on occupational tasks as the Veteran being limited in his ability to perform work that requires repeated squatting, standing, walking, climbing and descending stairs due to increased knee pain. It was noted that the Veteran lost his job working in warehouse and shipping due to those limitations. The Board notes that an intent to file a claim was received June 15, 2015. As stated above, the Veteran submitted his TDIU claim in April 2016, within a year of the intent to file a claim. Accordingly, entitlement to TDIU is warranted from June 15, 2015. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.