Citation Nr: 1801926 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-13 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based upon individual unemployability, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Douglas E. Sullivan, Attorney at law WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from August to September 1969. This matter comes before the Board of Veterans' Appeals (Board) from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. FINDING OF FACT The combined impact of the Veteran's service-connected disabilities have rendered him incapable of securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for establishing entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is entitled to a TDIU, to include on an extraschedular basis. Specifically, he asserts that his service-connected bilateral knee disabilities have prevented him from securing and maintaining gainful employment. As a preliminary matter, the Board notes that the evidence of record indicates that the Veteran was previously employed as a plumber and electrician. Both roles require physical labor and use of the knees. Review of the record indicates that the Veteran was awarded service connection for two conditions. Degenerative joint disease of the right knee which is evaluated at 30 percent disabling, effective August 29, 2011 and degenerative joint disease of the left knee evaluated at 10 percent disabling, effective July 21, 2015. The combined evaluation totaled 40 percent beginning on July 21, 2015. TDIU is assigned when a service-connected disability results in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15, 4.16(b) (2017). However, regulations provide that if the percentage requirements are not met, TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. §§ 3.321 (b), 4.16(b) (2017). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), however, the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award TDIU under 38 C.F.R. § 4.16 (b) in the first instance because that regulation requires that the RO first submit the claim to the Director of Compensation and Pension Service (DCPS) for extraschedular consideration. Pursuant to a December 2015 Board remand, the Veteran's claim for a TDIU was considered inextricably intertwined with the Veteran's service-connected right knee disability and referred to the DCPS for extraschedular consideration. In a July 2016 administrative opinion, the DCPS concluded that the evidence failed to show that the Veteran's service-connected disabilities rendered him unemployable or that application of rating schedule would be impractical. In support of this conclusion, the Director noted that the Veteran had multiple nonservice-connected diagnoses which had not been distinguished from his service-connected disabilities. This failure, it was opined, clouded any reasoning as to the cause of the Veteran's unemployability. Further, the opinion acknowledged that the Social Security Administration (SSA) granted the Veteran's claim for total disability benefits based on muscle, ligament and fascia disorders and a secondary diagnosis of diabetes mellitus - type II in a December 2010 administrative decision. The Veteran was adjudicated disabled as of January 1, 2008. A full review of the Veteran's prior medical history was noted, including recognition of current diagnoses of coronary artery disease with stent, myocardial infarction, diabetes mellitus, hypertension, peripheral neuropathy, and obesity. On review of the record, the Director referenced consideration of prior VA examinations. A reduced range of motion with normal muscle strength and stability was noted as to both knees. The Veteran's condition results in a functional impact as to bending, stooping, climbing, crawling, prolonged walking, standing and sitting. In February 2016, a VA examiner indicated that the Veteran's unable to secure or follow a gainful employment due to the above referenced limitations and stated that prolonged sitting or standing exacerbated the Veteran's bilateral knee pain. In analyzing the aforementioned opinion, the Director noted the examiner's failure to distinguish between the impact of the Veteran's service-connected disabilities and his non service-connected disabilities. Therefore, it was concluded that the opinion assumed facts not in the record and must be afforded less probative weight. Accordingly, as the Veteran's service connected disabilities were not identified either individually or collectively as the sole reason for the Veteran's unemployability; DCPS concluded that a TDIU on an extraschedular basis was not warranted. In analyzing the Veteran's claim on appeal, the Board must consider the central inquiry of "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). However, education, training, and past work experience are relevant to the questions. The Board notes that the Veteran's prior employment history included work as a plumber and electrician, which involves physical labor requiring regular use of the knees. The Veteran's highest level of education is a high school diploma, with no additional education noted. "Substantially gainful employment," denotes consideration of "whether a particular job is realistically within the physical and mental capabilities of the claimant." Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). Accordingly, a Veteran need not establish "100 percent unemployability" to prove an inability to maintain a "substantially gainful occupation;" the use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Board notes that in February 2016, the Veteran underwent a VA examination to assess the combined impact of his service-connected disabilities. As to the Veteran's bilateral knee disabilities, the examiner noted the Veteran's report of a functional impact as to bending, stooping, climbing, crawling, prolonged walking, standing, sitting, and limited range of motion. Accordingly, the examiner opined that it is at least as likely as not that the Veteran's service-connected right and left knee conditions would limit his ability to secure or follow a substantially gainful employment. In reaching the stated conclusion, the examiner noted that the Veteran's work history as a plumber and electrician required climbing, bending, stooping, crawling, and prolonged weight-bearing activities. The current condition of the Veteran's knees would severely limit performance of the noted activities, as would any form of employment requiring prolonged sitting because significant inactivity exacerbates the Veteran's bilateral knee pain. As previously noted, the Veteran was adjudicated as disabled in a December 2010 decision by the Social Security Administration (SSA). The determination was based on a finding that the Veteran became disabled in January 1, 2008 due to primary diagnoses of a muscle, ligament and fascial disorder, as well as a secondary disorder of diabetes mellitus-type II. While the Board acknowledges the determination of the SSA, it is not bound by the conclusions reached. The Board has fully considered all lay assertions of record, to include Veteran's contention that he is unable to unable to work due to his service-connected conditions. Generally, the Veteran will be deemed competent and credible to describe the impact of his disabilities on his ability to perform employment-related tasks. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377. The Board acknowledges the July 2017 Arguments, submitted by the Veteran's personal representative, asserting that the RO's December 2016 statement of the case ignored a favorable medical opinion as to the impact of the Veteran's service-connected bilateral knee disabilities on his employability. It also recognizes the DCPS opinion which concluded that the Veteran was not entitled to a TDIU on an extraschedular basis. However, on review of the record, the Board finds that a TDIU is warranted. More specifically, the Board notes that the DCPS decision was based on a conclusion that the February 2016 VA examiner failed to distinguish between the impact of the Veteran's service connected disabilities and his non service-connected disabilities. We disagree. The examiner's opinion specifically indicated that the Veteran's service-connected knee disabilities would preclude his ability to work as a plumber or electrician as both roles require climbing, bending, stooping, crawling, and prolonged weight bearing activities. The examiner also noted that any form of employment requiring prolonged sitting would exacerbate the Veteran's bilateral knee pain and therefore, it is at least as likely as not that the Veteran's service-connected knee disabilities would limit is ability to follow and maintain substantially gainful employment. No opinion was offered as to the impact of the Veteran's non service-connected disabilities on his employability. Further, in light of this Veteran's education, it is very unclear what job he could maintain in light of his service connected disabilities. While he was a highly skilled worker, the evidence clearly indicates he cannot go back to this profession. Accordingly, the Board finds that evidence of record supports, to a degree, a finding that the Veteran's service-connected bilateral knee conditions preclude his ability to work in his prior profession as well as in sedentary forms of employment. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for TDIU have been met. ORDER Entitlement to a total disability rating based upon individual unemployability, to include on an extraschedular basis is granted. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs