Citation Nr: 20038056 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 14-11 607 DATE: June 3, 2020 ORDER Entitlement to an extraschedular total disability rating due to individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran is as likely as not unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to March 1977. In December 2017 and June 2019, the Board of Veterans’ Appeals (Board) remanded this matter for additional development, to include referral of the issue of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service (Director). In March 2020, the Director denied entitlement to a TDIU on an extraschedular basis. The case has been returned to the Board for appellate review. Entitlement to an extraschedular total disability rating due to individual unemployability (TDIU). The Veteran is seeking entitlement to an extraschedular TDIU due to his service-connected knee disabilities. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). If the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, a grant of TDIU may still be granted on an extraschedular basis in cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). To prevail on an extra-schedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether one can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment that exceeds the poverty threshold for one person. The noneconomic employment requires consideration of a number of factors, including the frequency and duration of periods of incapacity or time lost from work due to disability, the veteran's employment history and current employment status, and the veteran's annual income from employment, if any. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Here, the Veteran is currently service connected for a right knee disability with an initial 10 percent disability rating from January 9, 1979, which was subsequently increased to 20 percent, reduced back to 10 percent and then increased to 30 percent from April 1, 2013. The Veteran is also service connected for a left knee disability with a 10 percent disability rating from August 20, 2003, and right knee scar with a noncompensable disability rating. Therefore, he does not meet the schedular criteria for TDIU and he has not throughout the course of this appeal. 38 C.F.R. § 4.16 (a). As previously mentioned, the Board remanded this matter in June 2019 for referral to the Director. In March 2020, the Director considered and denied the issue of entitlement to a TDIU on an extraschedular basis. Thus, the Board may now review the claim on an extraschedular basis. The Veteran last worked in 2008 or 2009, and the evidence shows that he does not receive income from employment exceeding the federal poverty threshold. Thus, the economic component of an extraschedular TDIU is met. Regarding the noneconomic component, the Veteran reported that he has a high school education without further training and has worked as a dishwasher and plumber assistant following his military service. See January 2018 VA Form 21-8940. The Veteran reported to the Social Security Administration (SSA) that post-service, he worked as an electrician’s helper, a warehouse handler, a plumber’s helper, and various temporary labor jobs. On his January 2018 TDIU application, the Veteran stated that he worked as a plumber’s assistant from approximately 2005 to 2007, as a dishwasher at a nursing home from fall 2007 to spring 2009, and as a dishwasher at a restaurant from June 2009 to August 2009. However, the plumbing and heating company the Veteran listed as his employer stated that he never worked for them. The nursing home stated that the Veteran worked for them from November 2007 to April 2008 and the reason for discontinuing employment was that he resigned. In a November 2003 statement, the Veteran noted that he lost two jobs in the past year because both knees were swollen to the point that he could barely walk. In a March 2007 VA medical treatment record, the Veteran reported that he worked at a restaurant as a dishwasher requiring prolonged standing, walking, and twisting. In a June 2009 statement the Veteran reported that he was having serious problems when he was working when he had to lift 30 pounds or more. At a December 2009 VA appointment, he stated he was unemployed due to his knees, but he had worked as a pipefitter, an electrician, and plumber. In July 2010, he stated that he could not work or walk anymore. At a September 2000 VA examination, the Veteran reported he was working as a plumber’s helper and that he had lost a few days from work in the past year due to his right knee pain. At a September 2007 examination, he stated that he was not able to stand to wash dishes. The examiner determined that there were no effects on usual daily activities. At a July 2009 VA examination, the Veteran noted that he quit his last job because he no longer wanted to wash dishes. The examiner determined that the Veteran was able to stand three to eight hours with only short rest periods and that there was no effect on the usual daily activities. From 2010 to 2012, the Veteran underwent two right knee replacement surgeries. At another VA examination in November 2016, he reported that he had difficulty lifting and carrying and could not work because he could not lift and had no education to do other jobs. At a February 2018 VA examination, the Veteran stated that he was a retired plumber and last worked in 2008. He also noted that he could not do anything too long because if he worked too much, his knees started swelling. The examiner determined that the bilateral knee conditions negatively impacted his ability to perform occupational tasks that required squatting, kneeling, climbing, prolonged walking, prolonged standing, or use of foot controls such as pedals. Records reveal some weakness in the right leg, with indication of some instability in the right TKR. The Veteran was granted SSA disability benefits effective May 2013 based on unspecified arthropathies and essential hypertension. An examination diagnosed hypertension and degenerative joint disease (DJD) of the bilateral knees, bilateral hands and feet, cervical spine, and left shoulder. The examiner determined that the Veteran would be limited to sitting six hours; standing and walking two hours; lifting 20 pounds occasionally and 10 pounds frequently; no climbing, kneeling, or crawling; and no continuous left-hand controls. A prior SSA denial was reversed given the additional impairments involving the left upper extremity and worsened DJD in the knees. While the Board emphasizes that it is not bound by any SSA determination regarding disability benefits when rendering its own decision on entitlement to TDIU on an extraschedular basis, it does shed light on the Veteran’s ability or inability to work and which disabilities significantly impact that inability, given that the Veteran has both service- and nonservice-connected disabilities. Under the circumstances and in light of the totality of the record, the Board finds that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. The question before the Board is whether his service-connected disabilities alone would preclude employment, and the inability to tolerate prolonged standing and walking due to his knees precludes work in the labor fields in which the Veteran has experience. The Board acknowledges that the Director determined that the Veteran was not entitled to an extraschedular TDIU, finding that overall evidence fails to support the contention that any of his service-connected disabilities or a combination of the effects of those disabilities prevents employment. However, the Board disagrees with this conclusion. The Veteran’s work experience and history demonstrate jobs that require physical labor, jobs that are not sedentary and involve a substantial amount of standing, walking, and use of his knees. Moreover, while the Director denied the claim, it was also noted that the February 2018 examiner stated that the Veteran’s bilateral knee conditions negatively impacted his ability to perform occupational tasks that require squatting, kneeling, climbing, prolonged walking or standing. Additionally, while it is not binding on the Board, the Board notes that the Appeals Management Center recommended the award of an extraschedular TDIU based on the limitations arising from the Veteran's service-connected disabilities, finding that the evidence suggests that the Veteran has experienced marked interference with employment due to his service connected conditions. See March 2020 VA Memorandum. Here, the evidence shows that it is as likely as not that the Veteran’s service-connected disabilities, specifically his bilateral knee disabilities, alone precluded him from securing or following a substantially gainful occupation. The VA examiners who examined the Veteran’s knees noted the functional impact that the Veteran’s knees have on his ability to perform occupational tasks. Moreover, the Veteran's work experience is not readily applicable to a sedentary occupation based on the ordinary meaning of the term. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). In any event, the ultimate determination as to entitlement to a TDIU is made by VA adjudicators, rather than medical examiners. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Here, with resolution of reasonable doubt in the Veteran’s favor, an extraschedular TDIU is warranted. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jennifer A. Frazier, 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.