Citation Nr: 18147237 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 11-31 833 DATE: November 5, 2018 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1975 to November 1984. He testified before the undersigned Veterans Law Judge during a March 2015 video conference hearing and a transcript of that proceeding is of record. This case has a long procedural history and has been before the Board previously. Most recently, in September 2017, the Board remanded this case to the Regional Office (RO) for additional development. The Board finds that the RO substantially complied with the 2017 remand. See Stegall v. West, 11 Vet. App. 268 (1998). While the Board sincerely regrets the delay, referral for consideration of entitlement to a TDIU on an extraschedular basis is warranted for the following reasons. Initially, the Veteran’s service-connected disabilities do not meet the threshold percentage required to establish eligibility for schedular TDIU pursuant to 38 C.F.R. § 4.16(a). At no point during the appeal period did he have either “one disability” rated at 60 percent or more; nor did he have two or more service-connected disabilities with at least one rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Veterans who do not meet the percentage thresholds to satisfy the criteria for a schedular TDIU under 38 C.F.R. § 4.16(a) still may be entitled to a TDIU on an extraschedular basis under § 4.16(b) if the evidence shows that they are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. The Board cannot adjudicate this issue in the first instance, and initially must refer the issue for consideration by the Director of the Compensation Service (Director). See 38 C.F.R. § 4.16(b). The Board finds that such referral is warranted here because the evidence summarized below suggests that the Veteran may be unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, considering his employment and educational background. The Veteran has a high school degree and a commercial driver’s license (CDL). Essentially, his entire post-service career was in the commercial trucking field until August 2009, when he last worked. He asserts his service-connected orthopedic disabilities have rendered him unemployable because he no longer can do the tasks required for his trucking career, including climbing into and out of his truck. The Veteran applied for VA vocational rehabilitation benefits in late 2009. His statements on program forms and counseling records document his functional impairments due to his service-connected disabilities, including problems with climbing stairs, prolonged walking, standing, kneeling, and stooping. In November 2010, he was awarded Social Security Administration (SSA) disability benefits effective August 2009 primarily based on osteoarthritis and allied disorders, which his SSA records clearly show included his service-connected orthopedic disabilities. He reported to SSA symptoms and impairments due to his service-connected orthopedic issues, including frequent sleep impairments due to chronic pain. SSA evaluators competently described his residual functional capacity (RFC) and the functional impact of his service-connected orthopedic disabilities on his ability to work, considering his occupational and educational background. In an October 2010 assessment, the SSA evaluator found that the Veteran had no residual functional capacity to perform past, relevant work as actually performed (considering his career almost entirely as a truck driver). The SSA evaluator reasoned that the Veteran had a RFC for “sedentary work” and a maximum residual functional capacity (MRFC) for unskilled work, and found that all work exceeds his RFC. Moreover, the SSA examiner found the Veteran was disabled based on his exertional limitations alone, considering a vocational analysis of his RFC. The SSA evaluator’s search of available jobs did not show a significant number of jobs to which his skills could readily transfer within his current RFC and MRFC. In a March 2010 VA examination and medical opinion, the examiner noted his use of assistive devices for his bilateral knee conditions and a cane for ambulation. The Veteran reported difficulty climbing stairs, kneeling, and standing and walking for prolonged periods. The examiner considered his background working as a truck driver for more than two decades, until he last worked in August 2009. Also, the examiner noted his difficulty getting into and out of the truck “cab,” as well as other physical tasks required for this job, including loading and unloading the cab, climbing stairs repetitively, and pushing heavy equipment. The examiner found that the Veteran was unable to do “physical work” due to symptoms and impairments of his service-connected knees and right ankle. However, the examiner found that the Veteran “may be able to be retrained in some type of sedentary work.” In January 2012 VA ankle and knee examinations, the examiner found that these disabilities impacted the Veteran’s ability to work as a truck driver, noting that the job involved climbing into and out of a “cab.” Also, the examiner noted that these disabilities impaired his ability to walk, sit, stand, climb stairs. In a September 2015 VA examination and opinion, the examiner noted that the Veteran’s right ankle condition impaired his ability to walk and stand. The examiner considered his employment background as a truck driver until August 2009, and his reported inability to get into and out of his truck due to his knee and ankle disabilities. The examiner explained his right ankle disability affected his ability to function in an occupational environment due to functional limitations such as decreased range of motion and instability. Moreover, the examiner found that activities such as prolonged walking, standing, and stair climbing are not recommended. However, the examiner found that the right ankle disability “would not limit sedentary activities.” The Veteran’s VA and private outpatient treatment records also document functional impairments due to his service-connected disabilities throughout the appeal period consistent with the evidence summarized above. Moreover, his treatment records show prescriptions for narcotic pain medications such as Percocet and Vicodin during the appeal period for managing chronic, severe pain due to his service-connected orthopedic disabilities. His treatment records also document his use of assistive devices for his knees and right ankle, and such devices’ impairment of his ability to drive. An October 2009 note from the Veteran’s private physician Dr. K.L.D. discusses the functional impact of the service-connected right ankle and bilateral knee disabilities on his ability to work. Furthermore, the Veteran submitted multiple lay statements by family and friends corroborating his reports regarding functional impairments due to his right ankle and bilateral knee disabilities, including difficulty with walking and climbing into and out of his truck. He also asserted through his attorney that his right ankle swelling requires him to prop his leg up, which they contend is not conducive to some types of “sedentary” work. In summary, the evidence summarized above suggests that the Veteran’s service-connected disabilities may have rendered him unable to secure and follow a substantially gainful occupation, considering his educational background and his employment background almost exclusively as a commercial truck driver. Thus, the Board is referring the issue of entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). The Board draws the Director’s attention to the principles in Withers. In August 2018, the U.S. Court of Appeal for Veterans Claims (the Court or CAVC) issued a decision addressing how the Board must consider medical examiners’ findings regarding a claimant’s ability to perform “sedentary” employment. In Withers v. Wilkie, the Court took issue with the Board’s reliance on a VA examiner’s finding that a Veteran was capable of “sedentary” work. The Court noted that VA regulations do not define the term “sedentary” employment, including 38 C.F.R. § 4.16. The Court concluded that the Board’s reliance on medical and vocational examiners’ findings that a Veteran is capable of “sedentary” work to deny a TDIU claim was inadequate because the vague, undefined term failed to account for the Veteran’s specific educational and occupational background, which was inconsistent with 38 C.F.R. § 4.16. Accordingly, the Court held that when relying on examiners’ findings that a veteran is able to perform “sedentary” work to deny a TDIU claim, the Board must define that term considering the specific facts of each case, including a particular veteran’s work history, education, and training. See Withers v. Wilkie, No, 16-1543, 2018 U.S. App. Vet. Claims LEXIS 1054 (Aug. 10, 2018). The matter is REMANDED for the following action: Refer the case to the Director, Compensation and Pension Service, or designee, for consideration of whether a TDIU on an extra-schedular basis is warranted. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel