Citation Nr: 21002755 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 13-09 020 DATE: January 14, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is granted, effective September 1, 2013. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran's service-connected left knee disability renders him unable to secure or follow a substantially gainful occupation consistent with his education and work history from September 1, 2013 forward. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to January 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision that adjudicated the Veteran’s increased rating claim for his service-connected left knee disability, granting a rating of 10 percent. On appeal of a rating in excess of 10 percent, the Board noted in its March 2017 remand that the record raised the issue of entitlement to TDIU, citing lay testimony from the Veteran’s wife discussing how his knee had become a hinderance in his ability to perform in his profession as a chef. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In August 2019, the Board adjudicated the schedular rating assigned for the Veteran’s service-connected left knee disability, but it remanded the issue of entitlement to TDIU so the Agency of Original Jurisdiction (AOJ) could refer the issue to the Director of Compensation Service (Director) for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b). In October 2020, the Director issued a memorandum decision denying an extraschedular TDIU. The AOJ has now returned the matter to the Board for further appellate consideration. Analysis VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. § 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). The sole fact that a veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In exceptional circumstances, where the veteran does not meet the percentage requirements for a TDIU, a total rating nonetheless may be assigned on an extraschedular basis upon a showing that the individual is indeed unable to obtain or retain substantially gainful employment because of a service-connected disability or disabilities. 38 C.F.R. § 4.16(b). Because it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16 (b). The Board cannot assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case to the Director for consideration of an extra-schedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)). VA is required to resolve reasonable doubt in favor of the claimant when there is an approximate balance of positive and negative evidence regarding any material issue. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Here, the Board finds that the Veteran’s service-connected left knee disability has rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history since September 1, 2013. The Board acknowledges the Director’s October 2020 memorandum denying entitlement to TDIU, finding that the Veteran had no limitations that would have prevented him from performing sedentary work prior to the left knee replacement. However, the Board is not bound by an adverse determination by the Director regarding extra-schedular entitlement to a TDIU. The Court has determined that the Director’s decision is in essence a decision by the AOJ and is no different than an RO’s decision in terms of its effect on the Board’s jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). Further, the Board finds that the Director’s determination that TDIU on an extra-schedular basis is not warranted is not persuasive. Specifically, the Director did not discuss the Veteran’s lack of education or training in any profession besides culinary arts. The Director also did discuss either of the Veteran’s December 2010 and August 2011 Vocational Rehabilitation and Education (VR&E) applications, wherein VA found in both instances that the Veteran’s left knee disability “[contributes] to the creation of an impairment to employability in substantial part” and that the Veteran “does not possess marketable skills for direct employment.” In this case, the record demonstrates that the Veteran’s left knee disability was a regular and progressively worsening problem. Even while maintaining substantially gainful employment, the Veteran needed to have a partial medial meniscectomy in 2004 and arthroscopic surgery for debridement in 2005. The left knee appears to have become particularly problematic in 2009, where both the Veteran and his wife submitted statements indicating that his knee had become a problem at work. In a December 2009 VA examination, the examination provider noted in their report that “the veteran has physical limitation with lifting heavy objects, bending, squats, prolonged standing, prolonged walking, stair climbing, and coming from sitting to standing.” He reported experiencing pain, stiffness, weakness, and giving way of the knee. He also indicated that flare-ups were precipitated by pivoting, twisting, squatting, and bending motions – movements that are all very common in a busy restaurant kitchen setting. These symptoms continued to regularly be reflected across years of his medical record, with the Veteran intermittently receiving cortisone, Synvisc, and Euflexxa injections in his knee in efforts to relieve pain and delay the need for a total knee replacement. The Veteran eventually stopped working in April 2010 secondary to non-service-connected injuries and obtained Social Security Disability Insurance (SSDI). His SSDI documentation further detailed the hinderance his knee had become, noting new symptoms in his left knee including clicking and shifting. He reported that walking on inclines, hard surfaces, and stairs would cause dull throbbing pain, and that he could not stand nor sit for prolonged periods of time. He applied for VR&E later that same year and continued to seek out employment, but was unable to secure a position. VR&E documents indicating the type of accommodations he would need to work corroborate the descriptions of his knee, with officials finding that he would need a job that required neither extended standing nor extending sitting. The Veteran regularly continued treatment and began contemplating the eventual necessity of a total knee replacement in August 2011. The knee reached its worst state in July 2012, at which point the Veteran underwent the total knee replacement. By the Veteran’s own testimony in a VA Form 21-8940, the July 2012 date of the left knee replacement surgery is the point at which his left knee rendered him too disabled to work. However, because the Veteran obtained a temporary total 100 percent rating for convalescence for a year following the procedure, he is not entitled to extraschedular TDIU during that period. He is only eligible for this benefit once his disability is rated below 100 percent – in this case, that was upon the expiry of his temporary total rating on September 1, 2013, at which time his left knee disability rating was reduced to 30 percent. The record contains extensive evidence documenting how the Veteran’s left knee disability progressed to the point where it rendered him unable to secure and follow a substantially gainful occupation. Medical records detailed how the Veteran was made unable to engage in the physical movements necessary for him to operate as a chef, the only profession he has ever held. VA’s own VR&E officers found on two separate occasions that the Veteran did not possess any of the education, skills, or training necessary for him to be able to secure and follow a substantially gainful occupation. (Continued on the next page)   In light of the forgoing, the Board finds the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment throughout the entire appeal period. After resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a TDIU on an extraschedular basis, due to his service-connected left knee disability, effective September 1, 2013. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Narnor, Harriyah 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.