Citation Nr: 20011973 Decision Date: 02/13/20 Archive Date: 02/12/20 DOCKET NO. 05-41 478 DATE: February 13, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), prior to August 12, 2016, and since December 1, 2016, to include on an extraschedular basis, is denied. FINDING OF FACT Throughout the appeal, the probative evidence of record does not demonstrate that the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1987 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was remanded by the Board in February 2011, August 2013, and December 2017 for further development. The Veteran is in receipt of a 100 percent rating from August 12, 2016 to December 1, 2016. The Board recognizes that an award of a 100 percent disability rating does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). That statute provides for additional compensation if the Veteran is in receipt of a 100 percent rating and has additional disability ratable at 60 percent or higher. In this case, however, for the period of time between August 2016 and December 2016, the Veteran was only in receipt of service connection for chondromalacia of the left knee, rated as 100 percent disabling, and right knee, rated as 10 percent disabling. Consequently, the granting of a TDIU could not assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114 (s). The issue of entitlement to a TDIU for this time period is therefore moot; therefore, the Board will consider entitlement to a TDIU only for those portions of the relevant appeal period during which the Veteran was not in receipt of a 100 percent disability rating, i.e., prior to August 12, 2016 and from December 1, 2016. Entitlement to a TDIU, to include on an extraschedular basis. The Board previously determined in February 2011 that the Veteran raised the issue of entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Pursuant to February 2011, August 2013, and December 2017 Board remands, the RO sent the Veteran letters in February 2011, June 2015, November 2015, August 2016, January 2018, and March 2018 requesting that he submit a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, which he failed to submit. The Board also notes the Veteran claimed entitlement to unemployability in an April 2009 lay statement asserting that he could not perform his job as a butcher any longer because that job required him to stand for long periods of time and engage in heavy lifting. He was also mailed a VA Form 21-8940 in response to this claim in September 2009 that was not returned. In this regard, the Veteran did not submit the requested form at any time after the RO sent the form to the Veteran’s last known address. The Veteran was notified that the submission of this form was required to further consider his claim. See, e.g., July 2017 and December 2019 Supplemental Statement of the Cases (SSOC); August 2013 and December 2017 Board remands. The notification letters sent to the Veteran’s last known address were delivered and received by the Veteran. See September 2018 Veteran lay statement. The United States Court of Appeals for Veterans Claims (Court) has held that the duty to assist is by no means a one-way street, and a veteran’s obligation to provide certain facts, in this case by completing a VA Form 21-8940, is not an impossible or onerous task. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board will proceed with the adjudication of the appeal. 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. 38 C.F.R. § 4.16 (b). A TDIU 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. 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 such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities resulting from a common etiology will be considered as “one disability.” The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, the fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Board notes initially that the schedular percentage requirements for TDIU under 38 C.F.R. § 4.16 (a) are not met. The Veteran’s service-connected disabilities include: a right knee muscle injury rated at 10 percent disabling and chondromalacia of the left knee also rated as 20 percent disabling. The combined rating is 20 percent from February 2004. Therefore, entitlement to a TDIU, on a schedular basis, is denied. Nevertheless, the Board notes that the Veteran has explicitly raised entitlement to an extraschedular rating. See Morgan v. Wilkie, 31 Vet. App. 162 (U.S. 2019); see also February 2011 Board remand, January 2020 Appellate brief. A TDIU may still be available if the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16 (b). As such, pursuant to 38 C.F.R. § 4.16 (b), consideration must be given as to whether the Veteran is entitled to a TDIU on an extraschedular basis. Entitlement to a TDIU extraschedular rating under 38 C.F.R. § 4.16 (b), and an extraschedular rating under 38 C.F.R. § 3.321 (b)(1), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321 (b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran’s disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. The Veteran was denied extraschedular consideration for his right knee disability in an August 2013 Board decision. In contrast, 38 C.F.R. § 4.16 (b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. In this regard, the Board notes that, for a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is because a disability rating itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. Significantly, however, the Board does not have jurisdiction to authorize an extraschedular rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the rating board must submit to the Director, Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16 (a). Id. In March and December 2019, the Director considered, and denied, entitlement to a TDIU on an extraschedular basis. Thus, the Board may now review the claim on an extraschedular basis. The Veteran previously contended that he cannot stand for long periods of time and that he has not worked since approximately 2005. See April 2009 and November 2010 Veteran lay statements. However, the Board notes that the Veteran recently indicated he was employed full-time in 2012 to 2013, working in a warehouse, factory, maintenance, landscape, etc., but that he left due to health issues. See September 2019 Rehabilitation Needs Inventory. The Veteran also indicated that he completed high school and some college eduction in business management. Id. At the December 2008 VA examination, the Veteran reported that his right knee is painful “off and on” and locks up one or two times per week. The Veteran, at that time, reported being able to go up and down stairs but would have trouble standing for more than ten minutes at a time. The Veteran demonstrated flexion to 90 degree with painful motion beginning there, both actively and passively. His right knee demonstrated good stability with no evidence of increase pain, fatigue, weakness, or lack of endurance with repetitive testing. At the August 2012 VA examination, the Veteran’s right and left knees demonstrated flexion to 90 and 140 degrees, respectively, with no loss of extension. The Veteran reported that both knees were painful; however, the left knee was not painful on range of motion testing. The Veteran demonstrated good strength and stability of station. The examiner noted that the Veteran resisted moving his knees during range of motion testing but was observed moving his knees within the normal range of motion while present at the exam. The August 2012 examiner concluded that the Veteran’s bilateral knee disabilities, while painful and restricting his motion, would have no functional impact on his ability to work. In so concluding, the examiner noted the Veteran maintained relatively steady employment from the time of his discharge until he was incarcerated for approximately one year in 2009. In November 2012, a VA examiner reviewed the Veteran’s claims file, to include his VA treatment records, and concluded that the Veteran’s bilateral knee disabilities would not restrict his gainful employment. Notably, the examiner concluded the Veteran’s left knee would allow heavy, medium, and light physical labor as well as sedentary labor. The examiner concluded that his right knee would not restrict gainful employment at all. Available VA treatment records do not reflect any recent hospitalizations or treatment for the Veteran’s bilateral knees, other than the left knee arthroscopy performed in 2016 that was subject to a temporary total grant of 100 percent from August 2016 to December 2016. See September 2016 private treatment records. Notably, the Veteran has sought treatment for right foot and ankle symptoms for which he is not service connected. See February 2016 VA treatment records. The Board notes that the responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). However, as noted above, the Veteran failed to submit a completed VA Form 21-8940 on at least 6 requests spanning over more than a decade and has not submitted any other evidence showing he is unable to secure and follow a substantially gainful occupation because of his service-connected disabilities other than his assertions. Thus, the Board must rely on the evidence presently of record which does not indicate that he is precluded from employment. Significantly, evidence that could have been used to bolster his assertions was not available to the Board. See Wood v. Derwinski, 1 Vet. App. 190, 193 (U.S. 1991). The Board has considered the Veteran’s statements regarding his difficulty working; however, there is no objective evidence of record to support his assertion. Notably, the Veteran’s bilateral knee disabilities have not been shown to limit motion to a compensable degree, his only reported functional impairment being painful motion. See December 2008, August 2012, and December 2012 VA examination reports. See also 38 C.F.R. § 4.71a. Finally, the Veteran was granted vocational rehabilitation benefits and deemed employable but was unable to complete his program due to incarceration, mental issues, and personal issues. See January 2017 Special Report of Training. There is no persuasive indication that the Veteran was specifically not hired or fired due to his service-connected disabilities and resulting symptoms. As stated previously, the fact that a Veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a disability rating itself establishes that his disabilities make it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is “incapable of performing the physical and mental acts required” to be employed. Id. at 363. The Veteran reported that he had difficulty standing and completing more physical work due to his knees; there is no persuasive indication that another less physical job, particularly given his college classes in business management, would not have opportunities for the Veteran. There is no persuasive indication in the record that the Veteran was precluded from employment during the period on appeal. The Board again acknowledges the Veteran’s lay statements that he believes he is unemployable. However, based on the evidence available, his contentions are not proportionate to his actual functional ability. In summary, the evidence of record does not persuasively show that the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. The Board acknowledges the medical and lay evidence that the Veteran’s service-connected disabilities impact his occupational functioning; however, a disability rating in itself is recognition that the ability to work is impaired. 38 C.F.R. § 4.1. The Veteran’s failure to submit a VA Form 21-8940 has also precluded the consideration of potentially favorable evidence as a completed form could have provided more information regarding the Veteran’s work history and reasons for not being able to maintain employment. See Wood, 1 Vet. App. at 193 (noting that the duty to assist is not a one-way street). Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. L. ANDERSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.