Citation Nr: 1806928 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-09 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Fales, Associate Counsel INTRODUCTION The Veteran served on active duty for training from November 1970 to April 1971. He served honorably in the United States Army. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In February 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDING OF FACT The competent medical evidence of record does not reflect that the Veteran is unable to obtain and/or maintain substantially gainful employment due solely to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria - TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Substantially gainful employment does not refer to an occupation in a particular field or to a veteran's most recent occupation. To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). This is not to say that the Board is unsympathetic toward a veteran's nonservice-connected disabilities, only that the Board is prohibited by law from taking them into account for the purposes of TDIU. 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. See 38 C.F.R. § 4.15. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected-disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). Legal Criteria - Evaluating Lay Evidence For the purpose of evaluating lay evidence, to include a veteran's statements about his disabilities, competent evidence is "limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptomatology of an injury or illness (such as pain or the visible flatness of his feet), a lay person is "not competent to opine as to medical etiology or render medical opinions." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Analysis Here, the Veteran has a bachelor's degree in electrical engineering, with additional training and professional registrations in California and Colorado. For over 30 years, he was employed as an electrical construction engineer, including in the power industry. He worked until 2005. The Veteran is service-connected for disabilities associated with his left and right knees only. He is not service-connected for any other disabilities, to include a back disability. Specifically, he is service-connected for: right knee osteoarthritis associated with degenerative joint disease, left knee (with a current rating of 40 percent); degenerative joint disease, left knee (30 percent); right knee instability associated with degenerative joint disease, left knee (10 percent); and scars, residual of surgeries, bilateral knees associated with degenerative joint disease, left knee (noncompensable). Since February 2011, he has had a combined rating of 70 percent. Accordingly, the requirements of 38 C.F.R. § 4.16(a) have been met. Turning to the question of unemployability, however, the Board concludes that the Veteran's service-connected disabilities, alone, make him unable to secure and follow a substantially gainful occupation. During the February 2017 videoconference Board hearing, the Veteran was granted a 60 day extension to obtain an opinion from a medical provider that he is unable to work due to his service-connected disabilities alone. However, in a letter to VA dated March 2017, the Veteran stated that he would not seek to obtain such an opinion and he also affirmatively waived the remainder of the 60 day extension. At the same time, the Veteran contended that his knee and back disabilities are "inextricably intertwined." Although the Board acknowledges that when it is not possible to separate the effects of service-connected and nonservice-connected disabilities the effects must be attributed to the service-connected disability, such is not the case here. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The March 2012 VA examiner and the November 2012 VA clinician each opined that the Veteran's service-connected knee disabilities make it difficult for him to stand and walk. The clinician went on to opine: "I see no reason why he cannot do sedentary jobs, which may not require him to do significant standing or walking, as far as his condition of his knees is concerned." Later, the February 2014 VA examiner opined that his back condition restricted his ability to do "repetitive bending over or lifting or prolonged sitting." Accordingly, the Board finds that the Veteran's knee and back disabilities are not inextricably intertwined because his medical records show that the disabilities have distinct manifestations and consequences for his functional abilities. Elsewhere in the record, to include during the February 2017 videoconference Board hearing, the Veteran has contended that reports from VA opinion providers actually support his claim. However, upon review, they do not. His contentions in this regard have focused on two areas. First, during his hearing the Veteran testified that the March 2012 VA examiner "said that I lost . . . my substantial gainful employment . . . due to my service connected disabilities." The Board finds that although the examiner did opine that the Veteran's "service connected R knee condition renders him unemployable," the examiner's previous sentence clearly shows that the examiner was referring to the Veteran's "regular position as an Electrical Construction Engineer" for which he was "unable to meet the basic functional requirements of walking and standing." To reiterate, unemployability for the purposes of TDIU does not refer to a particular occupational field or to a veteran's most recent occupation. Rather, it refers to an occupation that is more than marginal and that permits the individual to earn a living wage. Thus, the Veteran's unemployability regarding his last job is not dispositive of his claim. Second, during his hearing the Veteran also testified that the November 2012 VA clinician, who had opined that the Veteran was still capable of working sedentary jobs as far as his knees were concerned, "changed his mind," "180 degrees," during a subsequent examination in February 2014 because "he made a statement that I could no longer perform in a prolonged sitting, which eliminated me in sedentary capacity." In fact, the February 2014 opinion stated: "Due to DJD of LS spine veteran cannot be expected to do activities that require . . . prolonged sitting." This is clearly different from the November 2012 opinion that stated: "I see no reason why he cannot do sedentary jobs, which may not require him to do significant standing or walking, as far as his condition of his knees is concerned." It is different because the earlier opinion addressed the Veteran's difficulty standing or walking due to his knees, whereas the later opinion addressed his difficulty sitting due to his back. Thus, the two opinions are not inconsistent. Finally, the Veteran's private treatment records do not show that he is unable to work due to his service-connected disabilities alone. In fact, in April 2011 a private physician opined that he is "unable to sit for lengthy time periods due to back pain" and "unable to stand . . . due to knee pain." This is consistent with the other competent medical evidence of record that it is his nonservice-connected back disability, and not his service-connected knee disabilities, that keeps the Veteran from sedentary employment. In sum, the Board is prohibited by law from considering nonservice-connected disabilities for the purposes of TDIU. The Board can only consider the Veteran's service-connected knee disabilities. Accordingly, as the preponderance of the evidence is against the claim, the Veteran's claim for TDIU is not warranted. ORDER Entitlement to a TDIU is denied. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs