BVA Case 20-7929: Back

PIETSCH, Judge :The appellant appeals the September 16,2020, Board of Veterans' Appeals (Board)decision in which the Board denied the claim for entitlement to a total rating due to individual unemployability caused by service-connected disabilities (TDIU).

A single-judge memorandum decision was issued on February 28, 2022,in which the Court found that its review of this decision was frustrated by the Board's failure to discuss the duty to assist in the first instance.

The Court determined that it could not resolve this factual dispute or evaluate its potential effect on the Board's findings and remanded the claim for the Board to address the duty to assist and provide a statement of reasons or bases.

In a July 2019 decision,the Board denied entitlement to an initial disability rating in excess of 10%for right knee arthritis effective before September 12,2018,and further denied entitlement to a rating in excess of 30% for right knee arthritis from September 12, 2018.

In the September 2020 decision we consider here on appeal,the Board determined that the preponderance of the evidence weighs against finding that the appellant is unable to obtain or retain substantially gainful employment as a result of his service-connected disabilities alone.

Specifically,the Board found no evidence that the appellant's physical disabilities,which primarily affect his right knee and left hand, preclude his ability to obtain and retain employment.

Taking into consideration at least nine VA examinations from March 2010 through May 2020,the Board noted that multiple VA examiners found that the [appellant] was unable to sit, stand,or walk for prolonged periods of time;that he had difficulty ascending stairs; that he could not kneel repeatedly;and that his dominant left hand condition impacted his ability to do repetitive gripping and lifting.

In the alternative,the appellant contends that the Board failed to ensure VA's duty to assist was satisfied when VA did not obtain his Social Security records.