Citation Nr: 21002757 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 13-13 320 DATE: January 14, 2021 ORDER A total disability rating based on individual unemployability (TDIU) on an extraschedular basis from March 1, 2011, and prior to February 24, 2020, is granted. A TDIU from February 24, 2020, onward is granted. FINDING OF FACT The Veteran’s service-connected disabilities are as likely as not of such nature and severity as to preclude the Veteran from securing or following substantially gainful employment from March 1, 2011. CONCLUSIONS OF LAW 1. The criteria for a TDIU on an extraschedular basis from March 1, 2011, and prior to February 24, 2020, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b). 2. The criteria for a TDIU from February 24, 2020, onward, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from October 1970 to March 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board previously. In June 2019, the Board remanded the issue on appeal of a TDIU and referred it to the Director of Compensation Service for extraschedular consideration. This matter has now returned to the Board for appellate consideration. A TDIU. The Veteran seeks entitlement to a TDIU. See 8/2/2012 VA Form 21-8940; see also 8/13/2016 VA Form 21-8940. Specifically, the Veteran asserts that his knee disability prevents him from securing or following a substantial gainful employment. See 3/2/2012 NOD; see also 8/23/2012 Correspondence; 1/31/2015 Correspondence; 5/23/2016 VA Form 21-4138; 12/18/2020 Correspondence. After affording the Veteran the benefit of the doubt, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities preclude him from securing or following gainful employment. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The 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. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that “a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case.” Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). Regardless of the method, “if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability.” Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran’s service-connected disabilities include right knee unstable and painful scar (20 percent from November 17, 2014), residuals of right knee septic arthritis and arthrotomy (10 percent from September 1, 1998 to November 17, 2014), right knee deep nonlinear scar (10 percent from November 17, 2014), and total knee replacement of the right knee (10 percent from March 28, 2011; 100 percent from November 17, 2014; 30 percent from January 1, 2016; 100 percent from December 4, 2017; 30 percent from March 1, 2018; 60% from February 24, 2020). Since February 24, 2020, the Veteran’s combined disability rating has been 70 percent or higher. As suggested above, a temporary total rating was briefly in effect from November 17, 2014, to January 1, 2015, and from December 4, 2017, to February 28, 2017, due to surgical treatment for the Veteran’s right knee. The Board will address the Veteran’s entitlement to a TDIU on an extraschedular basis prior to February 24, 2020. As mentioned above, the Veteran’s TDIU claim was remanded by the Board in June 2019 and referred to the Director of Compensation Service for extraschedular consideration of a TDIU. Although the specific remand directives related to extraschedular TDIU were completed, the AOJ has since granted an increased rating. As such, the Veteran met the percentage requirements of 38 C.F.R. § 4.16(a) from February 24, 2020 onward. Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). As mentioned above, as the Veteran did not meet the schedular percentage threshold for the entire period that the Veteran claims a TDIU, the Board referred the Veteran’s TDIU claim to the Director of Compensation Service for extraschedular consideration in its June 2019 remand. A November 2020 discussion recommended against entitlement to an extraschedular TDIU. The November 2020 advisory opinion determined that entitlement to an extraschedular TDIU was not warranted. The Director concluded that the medical evidence did not establish that the Veteran’s service-connected disabilities rendered him unable to obtain employment. See 11/5/2020 VA Memo. However, the Board notes that the Director’s initial determination as to an extraschedular evaluation is not evidence. Wages v. McDonald, 26 Vet. App. 233, 239 (2015). Consequently, the Board must determine whether the Veteran’s service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). In this case, the evidence of record establishes that the Veteran has a College education. See 3/2/2012 VA Form 21-8940. However, the record showed conflicting evidence regarding the last day the Veteran worked. In 2012, the Veteran stated that he last worked as a taxidermist in March 2011. Id. However, in August 2016, the Veteran stated that he last worked as a taxidermist in 2014. See 8/13/2016 VA Form 21-8940. The Veteran submitted earning records to VA in 2017. They showed that the Veteran earned $17,776 in 2012, $16,618 in 2013, $10,744 in 2014, $11,085 in 2015, and $12,757 in 2016. See 6/30/2017 Income and Tax Statements. To the extent that the Veteran had monetary earnings in 2014, 2015, and 2016, his earnings were below the poverty thresholds and as such, his employment would be marginal. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. (2014 earnings of $14,326; 2015 earnings of $14,342; 2016 earnings of $14,522). Additionally, since the Veteran’s earning in 2012 and 2013 were barely above the poverty threshold (2012 earnings of $13,892; 2013 earnings of $14,095), the Board finds that it was marginal employment. As such, the Veteran last worked in a substantially gainful occupation in March 2011. During a February 2016 VA examination, the examiner noted that the Veteran’s knee disability impacted his ability to work. The Veteran should only perform sedentary work, should not engage in physical labor that involves squatting or kneeling, and should limit walking to less than 30 minutes per shift. See 2/24/2016 C&P Examination. In a May 2017 VA examination, the examiner noted that the Veteran would have mild difficulty gardening, performing heavy yard work, and doing heavy household chores. See 5/14/2017 C&P Examination. Additionally, during a December 2018 VA examination, the examiner noted no functional impact from the Veteran’s service-connected disabilities. See 12/10/2018 C&P Examination. During the most recent VA examination, the examiner noted that the Veteran must avoid uneven terrain, steep slopes, running, and jumping. Additionally, the Veteran must avoid repetitive use activities, such as stooping, squatting, pulling, pushing, sweeping, digging, kneeling, and crawling. Further, the Veteran must limit stairs to a maximum of 10 steps and limit walking to 200 feet. See 11/9/2020 C&P Examination. Additionally, the record showed that the Veteran’s service-connected knee disability is painful and unstable, which causes difficulty performing physical activities, difficulty sleeping, and an inability to concentrate. See 6/5/2017 Motion for Reconsideration, at page 2; see also 12/18/2020 Correspondence. Based on the evidence above, and resolving doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. In this regard, he is no longer able to maintain employment because of his lack of concentration as well as his inability to perform physical activities. In the Board’s review of the facts, to include the Veteran’s education, work history, and impairment from his service-connected disabilities, he has a complex and multifaceted disability picture that is incompatible with substantially gainful employment. The evidence demonstrates that the Veteran’s service-connected disabilities render him unable to work in physical labor. Moreover, the Veteran’s history of working almost entirely as a taxidermist indicates that he would not be able to find substantially gainful employment in another profession or a sedentary employment field. Based on the combined effects of the Veteran’s service-connected disabilities, as well as the Veteran’s work history and education level, entitlement to a TDIU is warranted as of March 1, 2011, the date when the Veteran became unemployed. There is no indication that the Veteran has the skills and experience to secure and maintain a job in the modern work environment. In summary, the Board finds the evidence to be in equipoise with respect to whether the Veteran’s service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. When reasonable doubt is resolved in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. Therefore, the Board finds that entitlement to a TDIU on an extraschedular basis per 38 C.F.R. § 4.16(b) from March 1, 2011, until February 23, 2020, is warranted. Additionally, entitlement to a TDIU is granted from February 24, 2020, onward per § 4.16(a). 38 U.S.C. § 5107(b). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.