Citation Nr: 18132220
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-04 628
DATE:	September 6, 2018
ORDER
A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted.
FINDING OF FACT
The Veteran’s service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment consistent with his educational and vocational experience.
CONCLUSION OF LAW
The criteria for entitlement to TDIU are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Marine Corps from August 1968 to August 1970.
1. Entitlement to a total disability rating due to individual unemployability
Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities.  If there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall 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.  38 C.F.R. §§ 3.340, 3.341, 4.16. 
For TDIU purposes, marginal employment is not to be considered substantially gainful employment.  38 C.F.R. § 4.1.  Factors to be considered, however, will include the Veteran’s employment history, educational attainment, and vocational experience.  38 C.F.R. § 4.16.
Here, the Veteran’s compensable service-connected disabilities include major depressive disorder, rated 50 percent disabling, total right knee replacement, rated 30 percent disabling, left knee chondromalacia patella, rated 10 percent disabling, left knee degenerative joint disease, rated 10 percent disabling, and residual scar on the right knee, rated 10 percent disabling, for a combined disability rating of 80 percent.  The Veteran meets the criteria for a schedular TDIU rating under 38 C.F.R. § 4.16(a) 
In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court) discussed the meaning of “substantially gainful employment.”  In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): 
It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. 
However, to receive TDIU, the Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 
The record reflects that the Veteran has a high school education.  Upon discharge from service, the Veteran worked as a skycap at airports for 26 years.  His duties included standing and walking for long periods of time and lifting heavy bags and luggage, which on average weighed about 75 pounds.  He has indicated that he eventually retired in 2009 because his knee disabilities prevented him from effectively performing his duties.
The Veteran applied for disability benefits from the Social Security Administration in 2009.  At that time, the Veteran indicated that his knee disabilities made it difficult for him to stand and walk for long distances.  He also had difficulty lifting heavy bags.  At a January 2010 Social Security Medical Evaluation, the physician described how the Veteran’s knees impacted his ability to work.  The physician found that the Veteran could not lift over 50 pounds at any given time.  He could only occasionally lift items over 10 pounds.  He also was unable to stand or walk for more than 30 continuous minutes without interruptions. 
The Board has also considered the Veteran’s treatment records.  Throughout the appeal period, the Veteran has reported how his bilateral knee disabilities have impacted his ability to work.  He had trouble with the physical demands of his job.  
As noted in Moore, the Board must address the TDIU question as a practical manner.  Here, the record reflects that the Veteran’s primary area of employment was as a sky cap.  Such employment primarily consists of physical labor; based on the Veteran’s job description, there’s no indication that there were any sedentary aspects of the job.  The Veteran’s service-connected disabilities primarily consists of his knee disabilities.  The Veteran’s long-standing issues with his knees include a total knee replacement on the right knee, which is rated 30 percent disabling.  He also has degenerative joint disease and chondromalacia patella of the left knee, each rated 10 percent disabling.  Such disabilities significantly impact his ability to perform the duties required in his primary area of employment as a skycap.  This job requires heavy lifting and long hours on one’s feet, which, based on the objective evidence of record, the Veteran is unable to perform.  To the extent the record suggests that the Veteran could maintain sedentary employment, the Board again points out that the Veteran has a high school education.  His post-service employment history consists only of physical jobs.  It would be impractical to assume the Veteran could easily obtain and maintain gainful employment in a field in which he has never worked.  Also, the record establishes mental impairment that includes disturbances of motivation and mood; difficulty establishing and maintaining effective work relationships; and difficulty in adapting to stressful circumstances, including work.  Given these facts, and affording the Veteran the benefit-of-the-doubt, the Board finds that the Veteran does not practically possess the ability to obtain or maintain substantially gainful employment consistent with his vocational background.  The claim, therefore, is granted.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.
 
C.A. SKOW
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Orie, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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