Citation Nr: 25005372 Decision Date: 04/21/25 Archive Date: 04/21/25 DOCKET NO. 11-15 815 DATE: April 21, 2025 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 29, 2015 is granted. FINDING OF FACT Prior to January 29, 2015, the Veteran's service-connected disabilities, to include his knee disabilities prevents him from securing and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement for a TDIU prior to January 29, 2015 are met. 38 U.S.C. § 1155; 38 C.F.R.§§4.16, 20.302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1977 to December 1980. This matter was initially before the Board of Veterans' Appeals (Board) on appeal from a March 2009 and March 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, in the August 2018 Board decision, the Board raised the issue of entitlement to a TDIU as part and parcel of the increased rating claim for a for medial meniscectomy, left knee with muscular atrophy, and mediolateral instability and left knee osteoarthritis. The Board granted entitlement to a TDIU. This decision was implemented by the RO in the December 2018 rating decision granting a TDIU effective January 29, 2015. Most recently, in the April 2023 Board decision, the Board granted a 60 percent evaluation from January 1, 2012 to October 4, 2020 for the Veteran's service connected total left knee replacement, which puts the Veteran in the schedular criteria for a TDIU prior to January 29, 2015. Specifically, the April 2023 Board decision also remanded the matter and directed the RO to obtain relevant information regarding the Veteran's employment history, to include an updated VA Form 21-4192A for the claim for entitlement to a TDIU. After further development, a December 2023 Supplemental Statement of the Case (SSOC) and a December 2023 rating decision were issued which denied entitlement to a TDIU prior to January 29, 2015. This matter is again back before the Board. The Board finds there has been substantial compliance with the April 2023 Board remand and the Board will proceed with adjudication of this claim. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU prior to January 29, 2015 is granted. The Veteran asserts that he is unable to work as a result of his service-connected disabilities. The Veteran is presently in receipt of a TDIU from January 29, 2015. TDIU can only be considered granted in full if it is assigned throughout the entire period on appeal; otherwise TDIU remains on appeal for the portion of the period on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). Because the grant of a TDIU from January 29, 2015 is a partial grant, the issue of TDIU prior to January 29, 2015, remains on appeal. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. § § 3.340, 3.341, 4.16. Total disability ratings for compensation 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, provided that the Veteran meets the schedular requirements. 38 C.F.R. § 3.340. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is 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). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities 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). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; 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 v. Brown, 4 Vet. App. 361 (1993). The Veteran has met the schedular requirement for TDIU prior to January 29, 2015. He has been in receipt of a 60 percent for his total knee replacement since January 1, 2012, 20 percent for his medial meniscectomy, left knee with muscular atrophy and mediolateral instability from August 29, 2005 to November 16, 2010, 10 percent for his osteoarthritis, left knee associated with medial meniscectomy, left knee with muscular atrophy and mediolateral instability from August 29, 2005 to November 16, 2010, 10 percent for his right knee arthritis from March 3, 2008 and 10 percent for a left knee replacement scar associated with total knee replacement from November 16, 2010 with a combined evaluation of 80 percent since January 1, 2012. See July 2023 Rating Decision - Codesheet. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58 (2019). The Veteran's DD-214 reflects that his military occupational specialty (MOS) was a scout helicopter repairer. The Veteran is a high school graduate. Post military service, he worked as a mechanic. Then after, he worked for his grandfather's construction business for 26 years then returned to aviation as a mechanic. Most recently, he worked as a helicopter inspector for an aviation company. Indeed, as corroborated by his former employer, an August 2023 correspondence confirmed the Veteran's employment as a QC inspector with the said aviation company from May 21, 2001 to October 26, 2012. It was reported that he last worked on October 26, 2012, and was involuntary terminated due to violation of company policy. See August 2023 VA 21-4192 Request for Employment Information. During his time with the said aviation company, a February 2008 correspondence from his employer noted that the Veteran has had to take more breaks during work days due to the stress of having to stand all day. His duties also include physical work, including climbing up and down an aircraft. In a February 2008 correspondence, the Veteran discussed that his knee disabilities caused him severe discomfort as he has difficulty climbing, crawling, stooping, lifting of heavy materials. Considering that he worked on helicopters, he often fears that he would fall because of knee disabilities. In his May 2023 VA 21-8940 Veteran's Application for Increased Compensation based on unemployability, the Veteran reported he mows the lawn as a side job and has no official incorporated business. Indeed, a review of his income and tax statements do not show any earnings from a lawn mowing business. The Veteran has provided multiple explanations for why he is no longer working. He noted that his service-connected disabilities; to include his knees has affected his employment and as such he became too disabled to work. He confirmed that he was discriminated against and was involuntary terminated from his last position in October 25, 2012. See December 2018 VA 21-8940 Application for Increased Compensation Based on Unemployability. During his September 2019 VA examination, he reported constant knee pain. He sleeps with a pillow between the legs to prevent his knees from rubbing together. He uses knee brace and can regularly. The VA examiner concluded he has functional loss due to difficulty with prolonged walking, standing or climbing stairs. While it is not clear from the record whether the Veteran was forced to stop working due to his service-connected disabilities or if he was involuntary terminated due to violation of a company policy or discriminated against, the Board notes that the question for a TDIU is not whether the Veteran was fired due to his service-connected disabilities in the past, but whether he is currently unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. (Continued on the next page) ? After considering the evidence of record, the Board finds that the Veteran has significant occupational impairment caused by his service-connected disabilities, to include his knees rendering him unable to secure a substantial gainful occupation due to his service-connected disability. Considering the Veteran's employment history and skills as helicopter mechanic are overwhelmingly focused on heavy manual labor and there is no evidence of any additional skills or trainings which might prove transferable to a less physically demanding career, the Board finds that the Veteran would be unlikely to be able to secure and follow substantially gainful employment. While he may find some form of unskilled work, the forms such would potentially take are severely limited, such as a stationary greeter in a store, and would not be considered "substantially gainful." Thus, the Board finds that a grant of TDIU is appropriate. Given the foregoing, all doubt is resolved to grant a TDIU prior to January 29, 2015. In granting a TDIU, the Board declines to assign an effective date in the first instance as that is a downstream issue for consideration by the AOJ. Accordingly, an effective date for the award of a TDIU will be assigned via the rating decision that implements the Board's TDIU grant. M. MILLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Mendoza, 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.