Citation Nr: 21000928 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 12-12 194 DATE: January 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities have a combined rating of 60 percent and they do not preclude securing and following substantial gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1977 to December 1983. This matter comes before the Board from a May 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas. In February 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. In November 2014 the Board remanded this issue for further development. 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). 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). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; VanHoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. VanHoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board notes that the Veteran is not qualified on a schedular basis for this claim. The Veteran was service connected for right knee degenerative joint disease resulting in a total knee replacement evaluated at 10 percent effective September 14, 2009, 100 percent from January 24, 2018 and 30 percent from March 1, 2019; right knee instability evaluated at 20 percent from September 14, 2009 to January 24, 2018; left ankle fracture evaluated at 0 percent effective October 3, 1991, 20 percent from January 30, 2009, 100 percent from January 15, 2010 and 20 percent from June 1, 2010; painful left ankle scar evaluated at 10 percent effective August 24, 2010 and right knee scar evaluated at 0 percent effective August 24, 2010. The Veteran’s overall evaluations are 0 percent from October 3, 1991, 20 percent from January 30, 2009, 50 percent from September 14, 2009, 100 percent from January 15, 2010, 50 percent from June 1, 2010, 100 percent from January 24, 2018 and 60 percent from March 1, 2019. 38 C.F.R. § 4.16(a). Initially, the Board notes that the Veteran’s employment status throughout the appeal period is unclear. In a September 2015 submission, the Veteran reported that he last worked full time in 1996 as an administrative clerk. However, in the Veteran’s February 2013 Board hearing testimony the Veteran testified that he last worked in 2008 before his knee began getting worse while the Veteran’s January 2012 social security records note that he reported becoming too disabled to work on November 01, 2006. Furthermore, an April 2018 VA treatment provider noted that the Veteran had been unemployed since 2002. While the Veteran’s resume stated that he was employed as a patient escort at the North Texas VA until 2012. The record shows the Veteran received a GED, had eight months of technical training, including training in plumbing, and received some education in website design, though it is noted that the Veteran did not complete this education. According to VA treatment records, his employment history included work in plumbing, cooking, administrative work, valet work, and construction. Pursuant to the Board’s August 2017 remand, the Director of Compensation Service reviewed the evidence of record and in a November 2018 decision, denied an extraschedular rating for a TDIU, finding that though the Veteran’s conditions would limit his ability to perform duties involving walking, standing, or climbing, the evidence did not support that the Veteran would be totally prevented from finding gainful employment. As stated above, the Board is not bound by this decision and referring the matter for an opinion has no bearing on the ultimate outcome of the appeal. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). Several medical treatment records indicated that the Veteran lost full-time employment several times due to being incarcerated in relation to a substance abuse issue. An October 2012 VA treatment record noted that the Veteran had been incarcerated 10 times prior to 2009 which interfered with his employment. In an April 2018 VA treatment record the Veteran indicated that his knee, ankle, and foot problems kept him from finding full time employment. In a September 2000 VA record, the Veteran denied any medical conditions or work limitations. April 2001 VA records indicated that the Veteran had difficulty holding a job due to a substance abuse issue. It was recorded that he lost his job as a valet at the Hilton Hotel due to being arrested in 2001. In June 2011 the Veteran stated that his knee was better and that he wanted to apply for the transitional work (TWE) program offered by the VA as he felt capable of the work tasks required. The Veteran was privately examined for his ankle disability in April 2009. The examiner did not determine the effect of the ankle disability on his employment as the Veteran was unemployed at the time. The examiner noted that the ankle disability precluded recreational sports and limited his ability to play with his grandchildren. A November 2009 VA examination noted that the Veteran experienced pain when standing for more than three minutes, walking one block, or lifting 10 pounds. While in an October 2010 VA examination, the Veteran stated that when he was employed, he was able to perform all job duties, though he did experience knee pain. In a January 2012 VA examination, the examiner noted that the Veteran’s knee condition impacted his ability to work but did not elaborate on this. The examiner noted that the Veteran did not have any problems with sitting or standing. September 2011 VA records showed that the Veteran reported that his right leg pain, which radiated from his buttock to his ankle, made sitting and ambulation more difficult. November 2011 records showed that the Veteran had worked as a valet under the TWE program but stopped due to knee pain. He applied for the TWE program several more times thereafter, however, he was found ineligible for the program due to a substance abuse relapse. March 2013 records noted, however, that the Veteran stopped working in 2011 voluntarily, as he had received a settlement from Payless after a work accident. VA records from August 2012 noted that the Veteran was not restricted from sitting, standing, or walking however, in October 2012 the Veteran reported pain when exercising, standing, walking, or sitting still for too long. In February 2013 a VA treatment provider determined that the Veteran could not pursue gainful employment due to a bulging disc in his back as well as a knee condition, but June 2014 VA records confirmed that the Veteran continued to work with supportive employment at the VA. In a February 2015 VA record it was noted that the Veteran was capable of pursuing gainful employment. In a March 2015 VA examination, the examiner determined that the Veteran’s knee condition would impact his ability to work, in that it would limit his ability to perform any prolonged squatting, walking, climbing, or standing. At an April 2018 VA examination, the examiner noted that the Veteran needed work accommodations including assistive devices for ambulating, frequent rest periods, and avoidance of certain activities. It was also noted that the Veteran’s use of medications would require review of drug policies and work release time for rehabilitation and physical therapy. The examiner noted that the Veteran’s work restrictions included the limited use of the knee including avoidance of kneeling, squatting, twisting, jumping, climbing, prolonged standing, and walking. The examiner also noted that heavy and very heavy work was not appropriate after a total knee replacement. Finally, the examiner noted that prolonged sitting was also to be avoided because of the potential risk of increased swelling of the lower extremity. July, August, and October 2017 VA records noted that the Veteran was sitting without distress and August 2017 records indicated that the Veteran was not actively seeking employment as he was more focused on school. In September 2017 VA records, the vocational rehabilitation specialist evaluated the Veteran and found that he was appropriate for participation in Vocational Rehabilitation and Therapeutic Work Programs at the VA. October 2017 VA records noted that the Veteran complained of ankle pain that persisted even after his surgery. At an October 2019 VA examination, the examiner found that the Veteran’s right knee instability after a total knee replaced impacted the Veteran’s ability to perform occupational tasks. The examiner noted pain in the knee when standing longer than 15 minutes, walking more than 15 minutes, and walking up more than one flight of stairs. In an October 2019 VA examination, the examiner found that the Veteran’s left ankle fracture impacted his ability to perform occupational task due to the Veteran’s ankle stiffness and pain, difficulty with prolonged walking more than 15 minutes, and climbing stairs. February and March 2019 VA records noted that the Veteran had obtained employment at Sudden Link Cable. July 2019 VA records noted that the Veteran was working for the first time in many years. The record stated that the Veteran was working at the Salvation Army in a largely sedentary role, monitoring the homeless people at the shelter and was being paid eight dollars an hour. It was also noted that the Veteran spent his free time volunteering at a church under a bridge and meeting people there. November 2019 records noted that the Veteran had to reschedule his appointment at the VA due to conflicts with his work schedule and December 2019 records indicated that the Veteran was still employed. A January 2020 record noted that the Veteran was applying to a local company for employment. There was no explanation as to why the Veteran did not maintain employment at the Salvation Army. Resolving all doubt in the Veteran’s favor, the Board finds that the evidence does not support the grant of entitlement to a TDIU on an extraschedular basis. The Board notes that it referred this issue for extraschedular consideration. The initial referral decision addresses only whether there is evidence sufficient to substantiate a reasonable possibility that the Veteran is unemployable due to service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58 (2019). But after such referral, if the Board denies TDIU, it is incumbent upon the Board to “provide adequate reasons or basis for deviating from its earlier referral decision.” In the referral, it was noted that there was evidence of unemployability, but that it was unclear. As noted further below, new evidence was gathered and part of that evidence indicates that employment was obtained in 2019. Additionally, upon review of the entire record, including both favorable and unfavorable evidence, the Board concludes that preponderance of the evidence is against the claim. Although the Board acknowledges that the Veteran would have difficulty with work duties requiring physical exertion, he would not be completely precluded from sedentary employment. The Veteran’s work history, which includes recent clerical and administrative work, indicates that the Veteran is properly equipped to perform such work at present. The Veteran’s resume, which he submitted for the vocational rehabilitation and employment program, indicated that the Veteran had an associate’s degree as well as certificates in peer support and business imagining and multimedia. Several other vocational rehabilitation documents also noted that the Veteran had completed some courses in web design. The examiners from the VA examinations from April 2009 to the present all noted that the Veteran had difficulty with prolonged standing, walking, squatting, or climbing. The April 2018 VA examiner also noted that the Veteran should avoid prolonged sitting as it would cause swelling in the knee, however the examiner did not determine that the Veteran was incapable of sitting. Although the Veteran had indicated in VA records that sitting could exacerbate his knee pain, several other VA records noted that the Veteran could sit without any distress. Although all the VA examiners noted that the Veteran would be limited in the kinds of employment duties he could perform, none of the examiners determined that the Veteran was incapable of substantially gainful employment. The Board also notes that the Veteran was evaluated and deemed eligible for the supported employment program at the VA and that he had obtained employment at the Salvation Army and still continues to pursue employment with VA assistance. The Veteran was able to perform sedentary job duties at the Salvation Army from at least July to December 2019 and there is no indication that the Veteran left his employment with the Salvation Army due to his knee or ankle disabilities. Review of the available evidence demonstrates that entitlement to a TDIU is not warranted on either a schedular or extraschedular basis as the Veteran is not precluded from obtaining or maintaining a substantially gainful occupation solely due to service-connected disabilities. The service-connected disabilities, either alone or in combination, do not appear to significantly limit the Veteran in an occupational setting that requires less physically strenuous work consistent with administrative work and managerial experience. Thus, entitlement to a TDIU on a schedular or extraschedular basis is denied. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ashley Ki 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.