Citation Nr: A25035122
Decision Date: 04/16/25	Archive Date: 04/16/25

DOCKET NO. 210623-167737
DATE: April 16, 2025

ORDER

Entitlement to total disability rating based on individual unemployability (TDIU) is granted.

FINDING OF FACT

In resolving all doubt in the Veteran's favor, the Veteran's service-connected disabilities prevented him from obtaining and retaining substantially gainful employment.

CONCLUSION OF LAW

The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1983 to September 2003.

The rating decision on appeal was issued in June 2021 issued by a Department of Veterans Affairs (VA) Regional Office (RO), and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.  In his June 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal and evidence received within 90 days of the Veteran's notice of disagreement.  38?C.F.R. § 20.301.

TDIU

Total disability is considered to exist when there is any impairment 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). The Board must consider if the Veteran can obtain employment more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 31 Vet. App. 58 (2019).

Further, the Board should also consider whether given the Veteran's history, education, skill, and training, in conjunction with the Veteran's physical ability and mental ability, can perform the type of activities required by the occupation at issue. See Id. Moreover, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341 (a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993).

If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993).

1. Entitlement to TDIU

The Veteran asserts that he is unable to work because of his service-connected disabilities.  In this case, the Board determines that TDIU should be granted.

As an initial matter, the Board notes that the Veteran met the schedular requirements for TDIU throughout the entire period on appeal. Specifically, he is service-connected for the following disabilities: obstructive sleep apnea and asthma (50 percent); left shoulder pain (20 percent from March  7, 2017 and 30 percent from September 4, 2019); lumbar disorder (20 percent); right knee disorder (10 percent from February 10, 2014 and 20 percent from September 12, 2019); bilateral degenerative joint disease of the knees (10 percent); chronic right ankle sprain (10 percent); left ankle sprain (10 percent); bilateral lower extremity radiculopathy (10 percent); tinnitus (10 percent); left hip strain (10 percent); hiatal hernia (noncompensable from October 1, 2003 and 10 percent from September 4, 2019); left knee disorder (10 percent from February 10, 2014, 20 percent from September 12, 2019, and 10 percent from November 9, 2020); allergic rhinitis (noncompensable); left hearing loss (noncompensable); left hip limited flexion (noncompensable); left hip abduction (noncompensable); hemorrhoids (noncompensable); and tinea pedis (noncompensable). As such, he has a combined total combined disability rating of at least 90 percent during the entire period on appeal.

Further, the evidence demonstrates that the Veteran was unable to obtain gainful employment during the period on appeal. In making this determination, the Board notes that the Veteran has had only one job since leaving active-duty service (as an Army signal trained) for approximately 16 years. Further, he could no longer perform that job because of his service-connected disabilities. Next, the Board places significant probative value on the assertions from the Veteran that the combined effects of his service-connected disabilities, including his significant musculoskeletal service-connected disabilities and sleep apnea causing a lack of focus and concentration prevent him from working.

Moreover, the Board also places significant probative value on the opinions from the VA examiners which indicate that the Veteran's service-connected disabilities caused significant interference with his ability to work. Additionally, in July 2021 the Veteran provided a vocational report where the vocational consultant opined that the combination of his symptoms impairs his ability to maintain concentration, persistence, and pace, and it is at least as likely as not that he would be an unreliable employee and miss significantly more than one day of work per month. Again, the question in this case is whether the Veteran could secure or follow substantially gainful employment, not whether he was totally precluded from work. As such, the Board finds that the clinical evidence, the vocational opinion, and opinions from the VA examiners, in conjunction with the credible statements from the Veteran places the question of substantially gainful employment in great doubt, and the Board has resolved all doubt in the Veteran's favor. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

Accordingly, entitlement to TDIU is granted. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). 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. 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Billinger, Associate Counsel