Citation Nr: 22051130 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 19-03 313 DATE: September 8, 2022 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The evidence is at least in approximate balance as to whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation consistent with his education, training, and work history. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been 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 Marine Corps from January 1999 to January 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in April 2019, October 2020, May 2021, and November 2021 for additional development. The case is now returned to the Board for further appellate consideration. Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the veteran's service-connected disabilities render him or her incapable of substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When jobs are not realistically within his or her physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making this determination, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board notes that the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 773 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the conclusions of VA examiners are not dispositive. However, the observations of the examiners regarding functional impairment due to service-connected disability go to the question of physical or mental limitations that may impact the veteran's ability to obtain and maintain employment. From December 11, 2013, the Veteran is in receipt of service connection for left knee chondromalacia patella (40 percent); anxiety disorder (30 percent); left knee locking (20 percent); right knee locking and effusion (20 percent); left knee instability (10 percent); right knee instability (10 percent); right knee chondromalacia patella (100 percent from September 4, 2014, and 10 percent from November 1, 2014); lumbosacral strain (10 percent); status post cholecystectomy (noncompensable); right knee scar (noncompensable); cholecystectomy surgical scar (noncompensable); and bilateral cataracts (noncompensable). From this date, the Veteran is in receipt of a combined 90 percent disability rating. As such, the Board finds that he met the percentage requirements under 38 C.F.R. § 4.16(a) for consideration of a schedular TDIU from December 11, 2013. With regard to the period of time the Veteran was in receipt of a 100 percent rating from September 4, 2014 to November 1, 2014 (as well as special monthly compensation) following right knee surgery, this period is excluded from consideration for entitlement to a TDIU. The question remaining before the Board is whether the Veteran was precluded from obtaining or maintaining a substantially gainful occupation as a result of his service-connected disabilities. In August 2018, the Veteran submitted VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. He reported that he last worked in November 2013 and that his anxiety disorder prevented him from securing or following any substantially gainful occupation. However, the Veteran did not report any of his employment history. In December 2020, the Veteran submitted another VA Form 21-8940 that is more detailed. He reported that he last worked full-time for a furniture company in October 2014 and that his bilateral knee disabilities prevent him from securing or following any substantially gainful occupation. On the form, the Veteran indicated that he previously worked as a corrections officer (from 2008 to 2009), an animal control officer (from 2010 to 2013), a gas station attendant (from 2013 to 2014), and, finally, as a loader at a furniture company (from 2014 to 2016). The Veteran has a high school education. The Board notes that the employment history provided by the Veteran on his second VA Form 21-8940 is not consistent with the date he reported he last worked. However, information contained in the contemporaneous medical records allows the Board to piece together his work history, which shows that he actually last worked in November 2013. The Board notes that the Veteran has been in receipt of Social Security Administration (SSA) Disability Insurance (SSDI) since November 2013 due, in part, to his service-connected bilateral knee disabilities and anxiety disorder. In June 2014, the Veteran filed a claim for an increased rating for his bilateral knee disabilities, stating that "my disability has worsened to the point where I have not been able to work for the past eight months due to my knees." In a July 2014 letter, the Veteran's doctor wrote that the Veteran suffered a work-related injury to his right knee on November 14, 2013, which required surgical treatment, as well as at least one more surgical procedure yet to be completed. The doctor wrote that the Veteran is unable to work until at least January 2015. At a March 2015 VA examination for his anxiety disorder, the Veteran reported that he injured his right knee at his job moving furniture in November 2013, and that he has been out of work ever since. He reported that he previously worked as an animal control officer but that he was fired because he was unable to control his temper. His symptoms were noted to include chronic sleep impairment, irritability, and anger. At a March 2015 examination for his lumbosacral strain, the Veteran reported that he has debilitating low back pain and that he cannot walk or drive. He stated that he is unable to walk more than 15 to 20 minutes due to back and knee pain. At a December 2018 VA examination of his bilateral knee disabilities, the Veteran reported that he experiences chronic, daily pain in both knees and falls four to five times per month due to instability and locking. The VA examiner found that the Veteran's knee disabilities impact his ability to perform occupational tasks, noting that he cannot do prolonged standing, walking, bending, stooping, lifting, carrying, or driving, and he must take breaks and change positions frequently. In a January 2019 statement, the Veteran reported that he in constant pain and is unable to stand or sit for longer than 15 to 20 minutes due to his knees becoming numb. In light of the foregoing medical and lay evidence, when considering the Veteran's history, education, skills and training, as well as his physical and mental ability to complete occupational activities, the Board concludes that the evidence is at least in approximate balance as to whether the Veteran's service-connected disabilities, render him unable to secure or follow a substantially gainful occupation. In this regard, there is sufficient medical and lay evidence to establish that his bilateral knee disabilities, lumbosacral spine disability, and anxiety disorder cause the Veteran significant functional impairments, which prevent him from partaking in any prolonged standing, sitting, walking, driving, or lifting, or getting along with coworkers or customers. Accordingly, after resolving all reasonable doubt in the Veteran's favor, the claim as to entitlement to a TDIU is granted. 38 U.S.C. § 5107(b); Lynch, 999 F.3d at 1391. J. Nichols Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.