Citation Nr: 21003513 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-22 693 DATE: January 21, 2021 ORDER From July 9, 2010 to April 7, 2015, a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted, subject to controlling regulations governing the payment of monetary awards.   FINDING OF FACT Prior to April 7, 2015, the Veteran was unable to secure and follow a substantially gainful occupation due to service-connected knee disabilities. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis, prior to April 7, 2015, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1973 to March 1974. The case is on appeal from a March 2011 rating decision. In July 2015, the Veteran testified at a Board hearing. In a July 2020 decision, the Board denied a rating higher than 20 percent for chondromalacia of the right knee with limitation of motion and a history of periostitis and a rating higher than 10 percent for instability of the right knee. The issue of a TDIU prior to April 7, 2015, noted to be part and parcel of the July 9, 2010 increased knee rating claim, was remanded for referral to VA’s Compensation Director (Director) for extraschedular consideration. A TDIU on an extraschedular basis prior to April 7, 2015. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more 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). It is also the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director’s decision before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, 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, 73 (2019). Analysis The Veteran asserts he was unable to work due to symptomatology associated with his service-connected right and left knee disabilities, prior to his total left knee replacement in April 2015. See July 2015 Board hearing testimony; October 2018 VA FORM 21-8940 (noting the Veteran was last employed in 2005 in a manual labor position). The RO assigned a TDIU from April 7, 2015. Prior to April 7, 2015, the criteria for a schedular TDIU were not met as his combined rating was 40 percent. Thus, the issue is whether a TDIU on an extraschedular basis is warranted during the rating period on appeal prior to April 7, 2015 under 38 C.F.R. § 4.16(b). Pursuant to the Board’s July 2020 remand, the matter was referred to the Director for an opinion on whether a TDIU could be assigned on an extraschedular basis under 38 C.F.R. § 4.16(b). In November 2020, the Director stated that VA treatment records did not show the Veteran’s knee disabilities were severe enough to preclude employment prior to April 7, 2015. However, the Board is not bound by the Director’s decision and it is not considered evidence. See, e.g., Kuppamala v. McDonald, 27 Vet. App. 233, 236 (2015). Significantly, a determination of the Social Security Administration (SSA) reflects disability primarily due to the Veteran’s service-connected right and left knee disabilities since February 2011. See August 2019 SSA records. Although not bound by a determination of the SSA, see Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993), record upon which the SSA determination was based reflect that obesity increased the Veteran’s knee pain, noting a corresponding increase in difficulty with walking and standing, as well as no transferable employment skills. Further, private treatment records in April 2011 note severe knee pain with any activity, and especially squatting, kneeling, and stairs. Additionally, VA treatment records in April 2012 reflect that the Veteran was unemployed, and the Veteran indicated that his knees were too painful for him to work. See April 2012 RO hearing testimony. Moreover, VA Vocational Rehabilitation and Education (VR&E) records in October 2012 reflect a determination that the Veteran’s service-connected knee disabilities resulted in inability to obtain, maintain, or prepare for specific employment in the labor market that would not aggravate his service-connected knee disabilities. Due to a lack of education, it was determined that the Veteran had no transferable skills for employment that was within his aptitudes and abilities. (Continued on the next page)   Here, the evidence shows that throughout the rating period on appeal prior to April 7, 2015, the Veteran’s service-connected knee disabilities precluded him from securing or following a substantially gainful occupation. 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). Critically, the determination of the VA VR&E vocational experts is highly probative evidence in favor of the claim. The Board notes that the award of both VR&E and SSA were based on the date of the claims for those benefits; however, SSA records noted medical onset of disability on January 25, 2010. See August 2019 SSA records. As the evidence is at least in equipoise, when reasonable doubt is resolved in the Veteran’s favor, the Board finds that, prior to April 7, 2015, the Veteran was unable to secure and follow a substantially gainful occupation due to service-connected knee disabilities. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, throughout the rating period on appeal, from July 9, 2010 to April 7, 2015, a TDIU on an extraschedular basis is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.