Citation Nr: 22016995 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 14-00 255 DATE: March 23, 2022 ORDER A total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) since July 1, 2011, is granted. FINDING OF FACT The Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation since July 1, 2011. CONCLUSION OF LAW The criteria for TDIU since July 1, 2011, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Air Force from July 1967 to July 1971 and from October 1971 to October 1976, and in the U.S. Navy from October 1977 to December 1989. In a March 2021 decision, the Board denied TDIU, and the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In December 2019, the Court granted the parties' Joint Motion for Remand (JMR), vacated the Board's March 2021 decision, and remanded the appeal to the Board. Entitlement to a TDIU. TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director, Compensation Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. 38 C.F.R. § 4.16(b). The Veteran appealed the initial rating assigned for his left knee disorder. During the pendency of that appeal, the Veteran indicated that his service-connected disabilities, including his left knee disorder, rendered him unemployable. Therefore, TDIU has been on appeal since March 17, 2006, as part of the appeal of the increased initial rating for the left knee disorder. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has been in receipt of a 60 percent rating for orthopedic disabilities since July 20, 2021, and, therefore, met the schedular criteria for TDIU effective that date. See 38 C.F.R. § 4.16(a). Prior to that date, TDIU is being considered on an extraschedular basis. See 38 C.F.R. § 4.16(b). The Executive Director of Compensation Service provided an opinion as to TDIU on an extraschedular basis in November 2020. The Board will conduct a de novo review and is not bound by the Executive Director's determination. See Wages v. McDonald, 27 Vet. App. 233 (2015). Service connection has been in effect for cervical spine degenerative disc disease since September 20, 1996; for low back degenerative arthritis and pain since July 20, 2021; for right knee degenerative joint disease (DJD) status-post patellar fracture since August 24, 1994; and for left knee medial meniscus tear with DJD since March 17, 2006. He had a separate rating for left knee instability from October 14, 2009, to December 3, 2013. The record indicates that the Veteran worked in maintenance and repair of electric and communications equipment during his entire time in service. After service, he continued to work as an electrician until he retired on June 30, 2011. The Veteran has reported, and VA treatment records and examination reports have documented, that the Veteran has had severe pain and functional impairment due to his service-connected musculoskeletal disabilities throughout the period on appeal. They limited his ability to walk, crawl, stand, sit, stand, bend, kneel, lift his arms above his head, and turn his head. During his last year of employment, he had two instances where his knees buckled from the weight of his tool bag. He had flare ups that prevented him from being able to work. He took pain medication which made him drowsy, and pain impacted his ability to concentrate. A March 2018 VA examiner stated that the Veteran's service-connected disabilities contributed to his retirement. The Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities beginning July 1, 2011. Prior to that date, he was not unemployable because he was working. He worked as an electrician throughout his life, including in service and after service. He was trained in no other profession. Even a less physically-demanding job would be difficult for the Veteran given that his musculoskeletal disabilities cause pain when sitting, his pain causes concentration difficulties, and his medication causes drowsiness. Given the Veteran's professional training and work history, combined with the severity of his disabilities, the Board finds that TDIU is warranted effective July 1, 2011. The appeal is granted. Jacqueline E. Miller Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, Associate 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.