Citation Nr: 21000355 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-44 614 DATE: January 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from December 1, 2017, to September 24, 2018, and from November 1, 2019, on a schedular basis is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 1, 2017, on an extraschedular basis is remanded. FINDING OF FACT The Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation from December 1, 2017, to September 24, 2018, and from November 1, 2019. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) from December 1, 2017, to September 24, 2018, and from November 1, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1973 to September 1974. These matters come before the Board of Veteran’s Appeals (Board) from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The matters were previously remanded by the Board in September 2018 and January 2020 decisions for additional development and have now returned for further appellate review. Entitlement to a total disability rating based on individual unemployability (TDIU) from December 1, 2017, to September 24, 2018, and from November 1, 2019, on a schedular basis 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. 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 nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For purposes of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). The Board notes that the ultimate question of whether a veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners’ conclusions as well as those of private medical professionals or vocational experts are not dispositive. However, the observations of these professionals may provide probative evidence as to a veteran’s ability to obtain and maintain employment consistent with his or her education and experience. Based upon a thorough review of the Veteran’s file, the Board finds that the probative evidence of record shows that the combination of the Veteran’s service-connected disabilities precludes him from securing and following substantially gainful employment, consistent with his education and occupational background. The Veteran predominantly worked as an assembler in the Heating and Air Conditioning industry from 1980 to 1997. The Veteran completed high school and attended one year of Heating and Air Conditioning training. The Board notes that the Veteran has been in receipt of Social Security Administration benefits for his bilateral knee conditions since 1998. The Veteran presently has a combined evaluation of 90 percent for service-connected bilateral knee total arthroplasty rated at 60 percent for each knee with bilateral factor of 8.4 percent. The Veteran’s previous combined evaluations were as follows: 40 percent from August 16, 2010; a temporary 100 percent from October 16, 2016 for convalescence from surgery; 80 percent from December 1, 2017; and a temporary 100 percent from September 25, 2018 for convalescence from surgery. As such, the Veteran meets the schedular criteria for entitlement to TDIU from December 1, 2017, to September 24, 2018, and from November 1, 2019. 38 C.F.R. § 4.16. The Veteran’s most recent VA examination regarding the severity of his service-connected bilateral knee conditions occurred in August 2020. The Veteran was noted to have right knee instability and total arthroplasty. The Veteran reported experiencing flare-ups of the knee causing difficulty walking and stooping that may last all day or for a couple of hours. The Veteran reported being unable to go shopping with his wife, standing for long periods of time, walking too far, sitting for long periods of time, doing house chores, getting out of chairs, and needing to install grab bars in the shower and near toilet to assist in mobility. The Veteran’s right knee range of motion (ROM) was noted to be abnormal with flexion from zero degrees to 85 degrees and extension from 85 degrees to zero degrees with pain exhibited on both flexion and extension, as well as on weight bearing. The Veteran was also noted to have localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran’s left knee ROM was measured at zero to 80 degrees flexion and 80 to zero degrees extension with pain exhibited on both flexion and extension, as well as pain on weight bearing with evidence of crepitus. Repeated use testing showed decreased ROM for the right knee from zero to 80 degrees flexion and 80 to zero degrees extension with pain causing the functional loss; the right knee was estimated at the same measurements during flare-ups. Repeated use testing showed decreased ROM for the left knee from zero to 57 degrees flexion and 57 to zero degrees extension with pain contributing to functional loss; the left knee was estimated to measure the same during flare-ups. The Veteran was noted to experience an antalgic gait due to his right knee pain and to exhibited reduced strength in both knees. The Veteran’s right knee was noted to have a history of moderate lateral instability and swelling following activity, as well as frequent episodes of joint “locking”, joint pain, and joint effusion. Regarding the Veteran’s employability, the examiner opined that the “Veteran’s bilateral knee pain hinders his ability to bend/squat, walk and/or stand for prolonged periods.” The examiner noted this would affect his ability to work. In a January 2020 statement, the Veteran indicated that he left his job as an assembler due to bilateral knee conditions in 1997. The Veteran reported that prior to his knee surgeries in October 2016 and September 2018 his knees were extremely painful and that he could only stand for about five to ten minutes before needing to sit down, and that he had to apply ice for twenty minutes before having to stand again. The Veteran also stated that he was unable to walk more than 100 feet due to knee pain and was unable to drive prior to his 2018 surgery because he was unable to keep his leg in a fixed position while driving and required frequent breaks while riding as a passenger. Presently, the Veteran reports daily knee pain with flare-ups three to four times a week lasting from one to twelve hours. He reports being able to walk approximately a city block before needing to sit and rest, and only being able to sit for approximately one hour. He states he has difficulty sitting in chairs comfortably and can only stand for five minutes at a time before needing a break due to pain. He states he cannot kneel in any capacity and must be very cautious when utilizing stairs. The Veteran presently utilizes a cane and knee braces. Additionally, he reports difficulty sleeping due to knee pain and being unable to assist in household chores. In January 2020, the Veteran submitted a private vocational assessment report by a vocational expert who interviewed the Veteran and reviewed his VA claims file prior to drafting the assessment report. The expert opined that the Veteran has “at least as likely as not been precluded from securing and following substantial gainful employment by his medical impairments” of the bilateral knees. The expert noted that the Veteran’s knee conditions have resulted in constant pain and right knee instability “resulting in an inability to maintain concentration” and that the Veteran has not been able to secure and follow substantially gainful employment “to include unskilled, sedentary employment based on service-connected conditions since at least August 2010 and continuing.” She opined that the service-connected disabilities have precluded the Veteran from sustaining concentration and focus required to maintain appropriate levels of productivity and pace for competitive employment. She noted that the Veteran is unable to sit, stand, or walk for significant lengths of time needed for performing work. Affording the Veteran the benefit of reasonable doubt, the Board is satisfied the evidence of record described above shows sufficiently severe physical symptomatology due to his service-connected disabilities to render him unable to maintain any substantially gainful occupation consistent with his educational and occupational background as an assembler in the Heating and Air Conditioning industry. Accordingly, TDIU is granted effective December 1, 2017, to September 24, 2018, and from November 1, 2019 forward. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 1, 2017, on an extraschedular basis is remanded. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the September 2018 and January 2020 Board remands, the RO was directed to refer the Veteran’s claim for extraschedular consideration for a TDIU prior to December 1, 2017, to the Direct of the Compensation and Pension Services. To date, this task has not been completed. The Board notes the Veteran’s assertion that referral for an extraschedular consideration to the Director of the Compensation and Pension Service is not necessary in the first instance, and the Board also notes the representative’s argument that referral in the first instance is contrary to established VA law. However, the Board finds these arguments misapply both established precedent and the general appellate structure. First, the Board notes the representative’s reliance on the majority opinion in Wages v. McDonald, 27 Vet. App. 233 (2015) to support its argument. While the Court in Wages did discuss the referral of extraschedular to the Director of Compensation, it did so purely within the scope of determining whether or not the opinion of the Director was nonreviewable, not whether or not it was necessary. The Court indeed found “the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU” and, “On its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance.” Wages, 27 Vet. App. 233. Secondly, the representative relies on interpretation of the language in 38 C.F.R. § 4.16 (b) to argue that a referral is not necessary. However, as indicated above the Court found “the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU.” Id. As the RO has not yet completed the required task of obtaining an opinion from the Director, the Board finds that remand is warranted to request that the RO complete this directive. The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU to the Director of the Compensation and Pension Service for extraschedular consideration prior to December 1, 2017. Place a copy of the Director’s decision in the claims file. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, 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.