Citation Nr: 18143540 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 08-20 691 DATE: October 19, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT 1. The Veteran’s service-connected right knee disability has not rendered him unable to secure or follow a substantially gainful occupation. 2. The Veteran failed to complete a VA Form 21-8940 and the evidence is insufficient to establish whether he was gainfully employed during the appeal period. CONCLUSION OF LAW The criteria for TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1958 to May 1959. This case was previously before the Board of Veterans’ Appeals (Board) in July 2015, when it was remanded for further development. In connection with this appeal, the Veteran testified at a hearing before a Veterans Law Judge in October 2010. The Board notes that the Veterans Law Judge that held this hearing has since retired from the Board. As such, in July 2018, the Veteran was provided an opportunity to appear before another Veterans Law Judge at a new Board hearing. He was also informed that, if he did not respond in 30 days, the Board would assume that he did not want another hearing and would proceed accordingly. See 38 C.F.R. § 20.707 (2016). The Veteran did not respond to this letter and the Board is proceeding to adjudication of this case. Entitlement to a TDIU The Veteran contends that that his service-connected right knee disability prevents him from securing or following substantial gainful occupation. The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16 (a). Service connection has been established for status post total right knee replacement. The Veteran’s post-operative rating was 100 percent from May 8, 2006 to July 1, 2007. As a 100 percent rating is the maximum payable, the period prior to July 1, 2007 is not for consideration in the appeal of TDIU. His right knee disability was evaluated as 40 percent disabling from July 1, 2007 through December 1, 2018, and has been assigned a 30 percent disability rating thereafter. Therefore, the percentage schedular requirement for a TDIU under 38 C.F.R. § 4.16(a) is not met. The Veteran has only been awarded service connection for a right knee disability. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (Veterans Court) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an “objective” one based on the average industrial impairment or a “subjective” one based upon the veteran’s actual industrial impairment. In a pertinent precedent decision, the VA General Counsel opined that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. After a review of all of the evidence, the Board finds that the Veteran’s service-connected right knee disability has not rendered him unable to secure or follow a substantially gainful occupation. The Veteran’s occupational and educational background is unclear. In a December 2015 letter, the Veteran was requested to submit additional information regarding the issue of TDIU to provide a more accurate picture of his work history following discharge from service, the requested documentation was not provided. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). It appears from the record that the Veteran completed high school and was employed as a barber, working less than full time, until approximately January 2012 when he suffered a myocardial infarction. However, he also reported that he continued to work part-time as a barber in a November 2012 VA treatment note. Treatment records during the period on appeal documented multiple serious nonservice-connected disabilities including a back disability, coronary artery disease, a mental health condition, bilateral foot and hip disorders and hypertension. VA treatment records noted functional limitations of lifting, bending, and extended walking due to a long history of low back pain. On VA examination in December 2010, the Veteran reported that he experienced progressively worsening right knee symptoms and that he felt as if he was better before the knee was replaced. He treated his knee symptoms with medication and limitation of activities, but the response to such treatments was only fair. His knee symptoms included giving way, pain, stiffness, weakness, decreased speed of joint motion, and repeated effusions. Severe flare ups of knee symptoms occurred twice a week and lasted for 1 day at a time. Flare-ups were precipitated by activity, were alleviated by rest and heat, and reportedly severely limited his activities. The Veteran did not use any assistive devices, he was also to stand for three to six hours with rests in between, and was able to walk 1/4 mile. Examination revealed that the Veteran walked with a limp and had an antalgic gait. There was right knee crepitus, edema, tenderness, and scarring and atrophy of the quadriceps, but there was no patellar or meniscus abnormality. The ranges of right knee motion were recorded as flexion to 95 degrees and extension to 0 degrees. There was objective evidence of pain with active motion of the knee and following repetitive motion, but there were no additional limitations after three repetitions of the range of motion. A diagnosis of right knee prosthesis was provided. This disability had mild to moderate effects on some activities of daily living and only allowed the Veteran to work part time due to pain and decreased mobility, manual dexterity, and strength. The Veteran, who reported working as a barber, indicated that he lost five to six days from work in the preceding 12 months due to the right knee disability. VA treatment records dated from January 2011 to March 2012 showed that the Veteran reportedly experienced chronic right knee pain/discomfort. Examinations revealed that he had a right antalgic gait and that there was mild swelling above the right patella. The ranges of right knee motion were recorded as being flexion to approximately 110 degrees and full extension. Muscle strength associated with knee flexion and extension was normal (5/5) and there was no palpable joint effusion, erythema, induration, bony tenderness, or crepitus. X-rays revealed a right total knee replacement without complications. The Veteran was diagnosed as having right knee pain, status post total knee replacement. These records showed that the Veteran continued working part time as a barber, three to four days a week. He complained of worsening back pain at the end of the day after prolonged standing. He remained employed as a part time barber until he suffered myocardial infarction in January 2012. VA treatment records from 2013 through 2014 show that despite physical limitations, the Veteran remained physically active. He reported being in the process of remodeling his home and doing a lot of the work himself. He also related working on a boat. However, due to shortness of breath associated with his cardiac disability, he experienced increased fatigue, which along with back and knee pain, was limiting his ability to remain physically active. Nonetheless, he reported improved endurance as a result of walking his dog daily. On VA examination in February 2014 the Veteran reported right knee swelling with prolonged standing, pain, and burning. Flare ups of knee symptoms occurred, which were described as swelling and warmth after periods of prolonged standing. Such flare ups lasted “a day or two” and were alleviated by medication and hot showers. After three repetitions of motion, the ranges of knee motion were recorded as flexion to 85 degrees and extension to 15 degrees. There was additional limitation in the range of motion following repetitive-use testing in terms of less movement than normal, weakened movement, excess fatigability, and pain on movement. There was no objective evidence of painful motion. There was no tenderness or pain to palpation for joint line or soft tissue of the right knee, and muscle strength associated with knee flexion and extension was normal. He did not use any assistive devices for ambulation. The Veteran was diagnosed as having degenerative joint disease of the right knee and status post right total knee replacement. The examiner noted post-operative residuals of intermediate severity, including weakness, pain, and limitation of motion. He reported that he was unable to work because standing caused knee pain and swelling. The physician who conducted the February 2014 VA examination concluded that a review of the Veteran’s VA treatment records dated since 2010 did not reveal any complaints of or treatment for chronic right knee pain and there was no documentation of flare ups of knee pain. In a November 2014 VA treatment note, the Veteran reported that he was recently retired as a barber and that he traveled with his partner. He had reported looking forward to a European cruise in April and that he was still working on his house renovations in a February 2014 VA treatment note. In a December 2013 VA treatment note, the Veteran reported that he was remodeling his home, doing a lot of the work himself and that he found the work to be physically difficult. He had also reported that had just returned from a Caribbean cruise in November 2012. Pursuant to the Board remand directives, in February 2018 the VA examiner who examined the Veteran in 2014, following a review of the claims file, opined the Veteran’s right knee replacement disability was productive of functional impairment that would impact physical employment involving prolonged standing, stair climbing and squatting. However, the Veteran was capable of work in a physical capacity with reasonable accommodations. The examiner further found that the right knee disability had no impact on the Veteran’s ability to work in a sedentary type of work setting. Consistent with the VA examiner’s findings, contemporaneous treatment records from 2014 through 2018, document physical limitations associated with the right knee. These records reflect that the Veteran retired and that he reported that he was no longer were able to stand and work in the barber profession. There were complaints of back pain with right lower extremity pain associated with knee asymmetry and loss of balance resulting in falls. However, none of his treating providers reported that the Veteran’s service connected right knee disability, alone, precluded employment. Moreover, the Veteran reported that he traveled internationally on multiple occasions and worked on home renovation projects during the appeal stream, suggesting that he was able to walk, stand and perform some physical activities. The Board has carefully considered the Veteran’s statements regarding the effects of his service connected right knee disability on his employability. Although the Veteran experiences some limitations as a result of his disability, and these have been found to cause some impact on his daily functioning and earning capacity, that impact was considered in the scheduler rating currently assigned. Simply stated, if he did not have impairment with his service connected right knee, there would be no basis for the current 30 percent disability impairment for this disability. The fact that he is having problems does not provide a basis to grant TDIU, particularly considering what can only be cited as extensive medical evidence against this claim. Significantly, the VA medical examiner in February 2018 indicated that the Veteran is not precluded from obtaining or maintaining substantially gainful employment. The Board has assigned the examiner’s opinion report great probative value as it was based on an examination of the Veteran and a review of the pertinent evidence of record. The examiner addressed the question of employability directly and the opinion is consistent with the treatment records and prior examination findings. This opinion is uncontroverted. Moreover, the Veteran’s failure to complete the VA Form 21-8940 leaves the Board without the ability to request information from his prior employers as to his reason for leaving and leaves the Board without full information as to whether the Veteran was engaged in gainful employment during the period. See Wood, 1 Vet. App. at 193. The Veteran reported that he worked as a barber part-time for some period during the course of the appeal. In a November 2012 VA treatment note, he reported that he continued to work part-time as a barber. A February 2013 VA treatment note reflects his reports that he was employed as a barber. Accordingly, referral of his claim to the Director, Compensation Service for consideration of such rating is not warranted and a TDIU rating is not warranted. While the Veteran clearly has problems with his service-connected right knee, these problems form the basis of the current evaluation. The Board finds no basis for additional examinations considering the extensive evidence that has been obtained in this case over many years. Accordingly, the Board concludes that referral of this issue for extraschedular consideration of TDIU pursuant to 38 C.F.R. § 4.16 (b), is not appropriate, and that a TDIU is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel