Citation Nr: 22016176 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 13-89 790A DATE: March 21, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from August 25, 2010 until the Veteran's death, is granted. FINDING OF FACT From August 25, 2010 to the Veteran's death, the Veteran's service-connected disabilities prevented him from obtaining and maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for the assignment of TDIU due to service-connected disabilities has been met as of August 25, 2010. 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 had honorable active service with the United States Navy from August 1952 to June 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran formalized his appeal to the Board in December 2013, when he filed a Form 9. At that time, the Veteran wanted a hearing before the Board. The Veteran passed away on December 15, 2015. See Death Certificate received December 2015. Afterwards his spouse, above as the Appellant, filed a VA 21-0847, to request substitution of the Veteran upon his death. Then in June 2016, the spouse was verified as a valid substitute for the Veteran. See Appeal Notification letter received June 2016. The case was then certified back to the Board for a hearing. In October 2020, the spouse, Appellant, requested that the hearing be converted to a virtual hearing. See VA 21-4138 Statement in Support of Claim received October 2020. Then in February 2022, the spouse requested to withdraw the virtual hearing before a judge and instead has asked for a direct judgement. See VA 27-0820 Report of General Information received February 2022. Entitlement to TDIU is granted. The Veteran contended, before his death, that he retired early due to his service-connected disabilities. See VA 21-8940 Veterans Application for Increased Compensation Based on U received June 2007, and August 2010. In September 2014, he contended that he had pain and difficulty walking. He stated that he was 100 percent disabled. See Correspondence received September 2014. After a thorough review of the evidence, the Board concludes that the Veteran's service-connected disabilities including a back disability, left knee disability, right ankle disability, left ankle disability, tinnitus, and hearing loss prevented him from obtaining and maintaining substantially gainful employment from August 25, 2010 until the date of his passing. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). 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 age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran had a combined rating of 70 percent from June 21, 2004 until his passing. The Veteran's back disability, residuals of a herniated disc, were rated at 40 percent from August 30, 1989. Therefore, the Veteran meets the basic eligibility for TDIU since June 21, 2004. Next, the Board considered whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran reported in multiple applications for TDIU that he was last employed in 1992 at the United States Post Office. He consistently reported that he retired early due to his service-connected disabilities. See VA 21-8940 Veterans Application for Increased Compensation Based on U received June 2007, and August 2010. Considering the evidence, the Board finds the Veteran's claimed unemployment to be credible. See 38 C.F.R. § 3.303(b); see also Charles v. Principi, 16 Vet. App. 370 (2002); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran reported that he completed high school. See VA 21-8940 Veterans Application for Increased Compensation Based on U received August 2010. As for the Veteran's service-connected disabilities, as stated above, the Veteran had a back disability, left knee disability, right ankle disability, left ankle disability, tinnitus, and hearing loss. The Veteran's back was rated at 40 percent during the relevant period. For example, in August 2007, the Veteran reported persistent back pain. He stated that his pain was an average of seven out of ten. He had an MRI in July 2003 showing a large central and right paramedian disc herniation at L4 to L5 which caused severe stenosis of the right lateral recess and neural foramen. He also had degenerative disc disease. See VA examination received August 2007. In the August 2007 VA examination, the Veteran reported using a cane and walker for ambulation as well as a back brace. The examination noted that the Veteran ambulated using a rolling walker. Id. The Veteran reported buckling, clicking, and pain in his left knee aggravated by walking. Id. The Veteran's left knee was rated at 10 percent for arthritis, and another 10 percent for instability. As for the ankles, the Veteran was rated ten percent in each ankle, for limited motion. In September 2008, the Veteran had an examination of his ankles. The examiner noted that the Veteran needed a brace and walker. He was unable to stand or walk more than a few yards. He had instability, pain, stiffness, and weakness. The Veteran's ankles prevented him from completing chores, shopping, exercise, sport activities, and recreation activities. He was able to feed, bathe, toilet, and groom himself. He had moderate limitations to traveling and dressing. See Medical Treatment Record-Government Facility received March 2008. Then in September 2014, the Veteran stated that he had been suffering from back pain that barely allowed him to walk. See Correspondence received September 2014. During the August 2007 audiological examination, the examiner noted that the Veteran had difficulty with his hearing loss and tinnitus. The examiner stated that the condition would interfere with his physical abilities and sedentary employment. See VA examination received August 2007. As for opinions, in August 2000 a private doctor provided a letter about the Veteran's service-connected conditions. In the letter the doctor stated that the Veteran took an early retirement due to his left knee weakness, a service-connected impairment. See Third Party Correspondence received June 2004. As discussed above, the Veteran is service connected for his left knee arthritis and instability. Then in August 2010, the Veteran's private provider opined that due to the severity of his service-connected conditions the Veteran was precluded from gainful employment. See Correspondence received August 2010. The Board finds that the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities rendered him unemployable. The VA examinations did not conclude that the Veteran's service-connected disabilities resulted in total occupational impairment; however, this does not preclude a finding that his service-connected disabilities substantially affected employment. The evidence of record shows that the Veteran's service-connected disabilities, altogether, had a significant effect on his ability to work. The Veteran had instability in his left knee. He reported instability in his ankles. He used a walker and reported ongoing back pain. The evidence suggested that the Veteran could not easily navigate on uneven surfaces, up or down stairs, or around common workplace hazards. Given the impairment produced by his service-connected disabilities, it appears that the Veteran would not have been capable of more than marginal employment in any type of work setting. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 72 (2016). Thus, the Board will resolve reasonable doubt in the Veteran's favor and find that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities from August 25, 2010 until his passing on December 16, 2015. 38 U.S.C. § 5107, 38 C.F.R. § 4.16. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.