Citation Nr: 18142208 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 08-19 030 DATE: October 15, 2018 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran does not meet the schedular criteria for TDIU, and his service-connected disabilities were not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to January 1976. In June 2016, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a Decision Review Officer (DRO) hearing. The DRO conducted the hearing in May 2018. Entitlement to a total disability rating based upon individual unemployability (TDIU) The Veteran has contended that his service-connected disabilities have rendered him unemployable. A TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran is service connected for left knee degenerative joint disease (DJD) and chondromalacia, rated as 10 percent disabling; right knee DJD and chondromalacia, rated as 10 percent disabling; left knee recurrent subluxation, rated as 10 percent disabling; right knee recurrent subluxation, rated as 10 percent disabling; essential hypertension, rated as 10 percent disabling; and left little finger distal joint fracture residuals, rated as noncompensable, with a combined disability rating of 40 percent since December 29, 2003. He therefore does not meet the minimum percentage requirements for an award of a schedular TDIU, as set forth in 38 C.F.R. § 4.16(a). Thus, he does not meet the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a) (2017). The record evidence also does not support granting the Veteran’s TDIU claim. For example, in a March 2014 VA examiner indicated that the Veteran had moderately impaired prolonged standing, walking and running. The March 2014 VA examiner opined that the Veteran was unable to obtain or retain employment due to service-connected disabilities consistent with his education and occupational experience as a dental technician. However, the examiner indicated that the hypertension caused no impairment, the hand condition caused impaired manipulation, and the knee disabilities caused impaired ambulation. The opinion did not indicate whether the Veteran was capable of performing any other type of employment aside from that of a dental technician. Therefore, in August 2015, the Board remanded the appeal for a new opinion. In a September 2015 VA examination, the examiner indicated that the Veteran was functionally limited with prolonged running, jumping, directly kneeling, and activities that would cause increased torque on the knee, which could cause pain. The examiner indicated that the Veteran could only perform light physical and sedentary tasks due to his diagnosis. An October 2015 VA examiner opined that the Veteran is not functionally impaired as it relates to his essential hypertension and that he could perform both physical and sedentary employment. The examiner also noted that he was less likely than not unable to secure or follow a substantially gainful occupation due to his service-connected left little finger disability; and the examiner indicated that he could entertain light physical and/or sedentary employment. In a June 2018 VA examination, the examiner indicated that the Veteran’s knee disabilities caused impaired prolonged standing, walking, climbing, ascending/descending stairs and running. The Veteran contends that he is entitled to a TDIU. The record evidence does not support his assertions. The Board again notes that the Veteran does not meet the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a) (2017). The record evidence also does not support granting the Veteran’s TDIU claim. The Board finds highly probative the March 2014, September 2015, October 2015 and June 2018 VA opinions, stating that the Veteran’s service-connected disabilities caused impaired prolonged standing, walking, climbing, jumping and running, but it did not render him unable to secure or maintain substantially gainful employment as he could perform light physical and sedentary tasks. These opinions concerning the Veteran’s employability were fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In summary, the Board finds that the criteria for a schedular TDIU have not been met. The Board emphasizes that in accordance with 38 C.F.R. § 4.16 (b) (2017), the assignment of TDIU on an extraschedular basis may be referred to and considered by the Director, Compensation Service, when the appropriate circumstances arise, to determine whether a veteran is unemployable by reason of service-connected disabilities but who fails to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a) (2017). With regard to an extraschedular rating, if a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a) (2017), rating boards should refer to the Director of Compensation Service for extraschedular 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) (2015). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, 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 a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19 (2017). 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). The service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue are to be addressed if such a referral is made. 38 C.F.R. § 4.16 (b) (2017). The Board realizes it cannot assign an extraschedular rating in the first instance under § 4.16(b) (2017). Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). See also Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Nevertheless, the Board may adjudicate whether a referral to the Director of Compensation Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun, 22 Vet. App. at 115 ; Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the appropriate official has determined that an extraschedular evaluation under § 4.16(b) is not warranted does the Board have jurisdiction to decide the claim on the merits. In fact, the Court has held that, although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board’s ability to review the adjudication of an extraschedular rating under § 4.16(b) or § 3.321(b)(1) once the Director of Compensation determines that an extraschedular rating is not warranted. Anderson, 22 Vet. App. at 427-28. See also Floyd, 9 Vet. App. at 96-97. At present, the Board has to make the initial determination as to whether referral to the Director of Compensation and Pension Service is appropriate for an extraschedular evaluation under § 4.16(b) (2017). After weighing the medical and lay evidence of record, the Board finds no basis for referral of the case for consideration of an extraschedular award of TDIU under 38 C.F.R. § 4.16 (b). Based on the foregoing, the Board finds that the Veteran is not prevented from securing or following substantially gainful employment due to his service-connected disabilities alone. As noted above, the evidence of record shows that the Veteran could still perform light physical and sedentary work. The Board finds that the evidence of record supports this finding, pursuant to the Veteran’s work and educational history. As such, referral for consideration of entitlement to a TDIU is not appropriate. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Warren, Associate Counsel