Citation Nr: 21003648 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 10-34 986 DATE: January 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to an initial rating higher than 20 percent for left knee early degenerative joint disease (left knee DJD) with spur formation is remanded. Entitlement to an initial rating higher than 20 percent for right knee status post contusion and DJD (right knee DJD) with residual scar is remanded. Entitlement to an initial rating higher than 10 percent for left knee instability is remanded. Entitlement to an initial rating higher than 10 percent for right knee instability is remanded. Entitlement to a separate compensable rating for limitation of extension for left knee DJD with spur formation is remanded. Entitlement to a separate compensable rating for limitation of extension for right knee DJD with residual scar is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities precluded him from being able to secure or follow substantially gainful employment throughout the appeal period. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU is met for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from May 1967 to February 1971. The claim for TDIU comes before the Board of Veterans’ Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2010, the RO denied entitlement to a TDIU, and the Veteran timely appealed the denial to the Board. In September 2019, the Board remanded the claim for referral to the Director of Compensation pursuant to 38 C.F.R. § 4.16(b); the claim as since returned to the Board for adjudication. The procedural history of the remaining claims is discussed in the Remand section below. This case has been advanced on the docket pursuant to 38 U.S.C. § 7107 and 38 C.F.R. § 20.900 (c). TDIU A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § § 4.16 (a). However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extra-schedular basis by VA’s Director of Compensation Service when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § § 4.16 (b). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose v. Brown, 4 Vet. App. 363 (1993). “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. The Veteran is currently rated at 20 percent for right knee DJD, 20 percent for left knee DJD, 10 percent for right knee instability, 10 percent for left knee instability and was most recently granted service connection and a 30 percent rating for coronary artery disease (CAD) in a January 2020 rating decision. Although the Veteran would meet the schedular criteria for a TDIU for a portion of the appeal period, with a combined disability rating of 70 percent as of August 20, 2019, and by combining the orthopedic disabilities of his lower extremities to achieve a single service connected disability rated 40 percent, 38 C.F.R. § 4.16(a)(1),(3), given that the Board has already remanded his claim for consideration under 38 C.F.R. § 4.16(b) by the Director as discussed below, it need not bifurcate the discussion to address the schedular nad extraschedular periods separately. The Board lacks the power to award an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). This holding has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) (“The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided”), but the Court recently declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520, 2020 U.S. App. Vet. Claims LEXIS 662 (Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op at 2 (Greenberg, J., dissenting) (“What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?”). Here, the Director denied entitlement to an extra schedular TDIU in an October 2020 Advisory Opinion. Thus, the Board now has the power to award an extraschedular TDIU. Wages, 27 Vet. App. at 238-39. Turning to the merits, the record reflects that the Veteran was last employed in February 2009 as a truck driver for Barnes Transportation. The Veteran reported on his September 2010 substantive appeal to the Board (via VA Form 9) that his service-connected knee disabilities alone make him unsuitable and unable to obtain gainful employment in the field which he is capable and knowledgeable. A January 2015 VA examiner noted the Veteran’s inability to stand for long, to walk far, to run, to kneel and to squat without pain impacts his ability to work, and that his is unable to climb in and out of an elevated truck such as he has to drive in his usual occupation. The January 2015 VA examiner also reported pain, weakness, fatigability and/or incoordination, increased likelihood of his knees giving way and falling, decreased endurance and increased weakness. When flareups hit, the Veteran reported in the January 2015 VA examination, he could take a tumble and endure intense pain. The July 2014 Social Security Administration (SSA) records indicate that the Veteran’s service-connected disabilities prevented him from performing any of his past jobs. A June 2017 VA examiner also noted the Veteran experienced difficulty with prolonged sitting, standing, and walking, was unable to kneel or squat, and experiences intensely painful flareups. The record reflects that the Veteran remains unemployed, continues to suffer from moderate to severe knee pain, cannot walk long distances, requires rest for pain relief and experiences his knees give out. The Veteran further reported in a March 2018 VA examination that he experiences sharp pain in his knees after walking, knee pain when sitting down, and moderate to severe flareups last a day at least twice a month. Lastly, the Veteran’s only prior employment was as a truck driver and his education consisted of four years of high school. The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). In considering the question of the Veteran’s capability of securing and following substantially gainful employment, the evidence shows that his service-connected knee disabilities cause a range of physical issues. Even if the Veteran could perform the labor associated with a sedentary job, as the Director suggested in her October 2020 advisory opinion, symptoms (such as weakness, severe pain, fatigability, his knees giving way, falling, decreased endurance, difficulty with prolonged sitting, standing, inability to kneel or squat, and flareups resulting in intense pain), the combined effect of his multiple service-connected disability symptoms, the Veteran’s education and experience, and the overall constant nature of the symptoms would likely preclude him from securing and following substantially gainful employment. Wages, 27 Vet. App. at 238-39 (the Board conducts de novo review of the Director’s decision, which is “in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence”). The evidence is thus at least evenly balanced as to whether the Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment in light of his education and occupational history. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted for the entire appeal period. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND The matters below came before the Board on appeal from a February 2009 rating decision of the VA RO in Winston-Salem, North Carolina. Following remands in June 2014, May 2017, and December 2017, the Board granted increased ratings of 20 percent for right knee DJD and 20 percent for left knee DJD, as well as separate ratings of 10 percent for right knee instability and 10 percent for left knee instability, in September 2019. These ratings were implemented in a January 2020 rating decision. However, the Veteran appealed the Board’s decision to the Court, to the extent that higher ratings were not granted. Pursuant to a Joint Motion for Remand (JMR) filed by the Veteran’s representative and VA, in October 2020, the Court of Appeals for Veterans’ Claims (Court) vacated, in part, the Board’s September 2019 decision and remanded the claims to the Board for further development and readjudication in compliance with its specified directives. The case has returned to the Board for appellate consideration. In the October 2020 JMR, the parties found that a remand was necessary for a new VA examination. In September 2017, the Board remanded the Veteran’s right and left knee DJD for further development, to include obtaining a VA examination to evaluate the current severity of his service-connected bilateral knee disability. The Board instructed that the examination should be conducted in accordance with the current disability benefits questionnaire, to include range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing and non-weightbearing, consistent with 38 C.F.R. § 4.59 as interpreted by Correia v. McDonald, 28 Vet. App. 158, 169-170 (2015). The Veteran was afforded a VA examination in March 2018, which the JMR parties found was inadequate as it only contains one set of range of motion measurements for each knee and while pain on passive range of motion was noted when the joints were used in non-weightbearing, the VA examiner did not express these in terms of degrees of motion as directed by the Board. Moreover, the JMR parties further agreed that that the March 2018 VA examination was inadequate because while the VA examiner indicated the Veteran experienced flareups, he did not answer whether there was additional range of motion loss during flareups because they could not be directly observed. See Sharp v. Shulkin, 20 Vet. App. 26, 33 (2017). Lastly, the JMR parties agreed that the Board failed to provide adequate reasons and bases as to whether the Veteran warranted a separate rating for limitation of extension for both knees pursuant to evidence in the January 2015 VA examination. See 38 C.F.R. § 4.71a, DC 5261; Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017). Therefore, the Board finds that a remand is necessary for a new VA examination to be conducted in accordance with Sharp and 38 C.F.R. § 4.59 as interpreted in Correia to ensure compliance with the October 2020 JMR and the September 2017 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, these matters are REMANDED for the following action: Schedule the Veteran for a new VA examination to evaluate the severity of his service-connected right and left knee DJD. The record must be made available to, and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies and tests should be conducted. The examination should be conducted in accordance with the current disability benefits questionnaire, to include being consistent with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), to specifically include testing the range of motion in active motion, passive motion, weightbearing, and non-weightbearing, as well as address the Veteran’s functional loss, in terms of range of motion, during flareups and due to repetitive use over time. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board JR Cummings, 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.