Citation Nr: 21004403 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-47 851 DATE: January 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran’s combined disability rating is 10 percent, and his service-connected right knee disability alone does not present unusual or exceptional disability factors warranting assignment of an extraschedular TDIU. CONCLUSION OF LAW The criteria for assignment of a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1963 to July 1965. This case comes before the Board of Veterans’ Appeals from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in February 2018, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. Entitlement to TDIU Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to obtain and maintain substantially gainful employment. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2019). In reaching such a determination, 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). Initially, the Board observes the Veteran is service-connected for a right knee disability, but does not meet the schedular criteria for assignment of a TDIU at any point during the appeal period. See 38 C.F.R. § 4.16 (a) (2019). In instances in which the Veteran is unemployable by reason of service-connected disabilities, but who fail to meet the schedular criteria, the case should be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b) (2019). In the instant case, the Board remanded this matter to the Director of Compensation Service, in the February 2018 remand. Following a review of the evidence of record, the Director of Compensation Service denied the assignment of the extraschedular TDIU in February 2020, based on a finding that the evidence of record failed to show that the effects of the Veteran’s service-connected disability prevents employment. This issue is now within the Board’s jurisdiction. The Veteran contends that his right knee disability is so severe that the Department of Transportation (DOT) will no longer allow him to work. He complains of limited movement in the right leg and being unable to stand for even a short period of time. He complains of an inability to sleep due to the pain. On VA Form 21-6796 dated July 1, 1992, the Veteran stated that he has been unable to work since January 1992. At that time the Veteran had complaints of diabetes and hypertension. There were also complaints related to an eye condition and a note that the Veteran’s vision was no longer correctable to within normal limits. Similarly, in a February 1995 letter supporting a separate claim, the Veteran noted that he was unable to operate equipment under DOT rules due to his poor eyesight, high blood pressure, and diabetes. At no point in those statements did the Veteran report that his right knee disability was a factor in preventing him from obtaining or maintaining gainful employment. A March 1995 rating decision indicates that the Veteran was no longer allowed to work with the heavy equipment due to an inability to control his diabetes. The decision also noted that the Veteran had uncontrolled fainting spells which prevented him from doing this work. Neither of those issues are service-connected. There was no discussion of a right knee disability causing him to be unable to work. The Veteran’s current right knee disability is service-connected at a 10 percent rating due to a diagnosis of osteoarthritis causing painful motion. The medical evidence of record includes a November 2014 VA examination diagnosing the osteoarthritis in the right knee and verifying that the Veteran’s service treatment records contained right knee complaints, including a diagnosis of chondromalacia of the right knee in April 1964. This examination also noted that the Veteran’s right knee issues would limit the type of physical job that he could work. However, it was not found at that time that the Veteran’s right knee disability would totally prevent the Veteran from working. Additional VA medical records indicate that the Veteran continued to seek treatment for the right knee, including being fitted with a brace in 2016. In February 2017, the Veteran requested a TENS unit for his right knee, but was told that this would likely have no effect and was instead offered cortisone injections. The Veteran declined the injections. A second VA examination took place in August 2017. The Veteran was using both a brace and a cane at that point. The functional impact of his right knee, as well as nonservice-connected left knee, was that he was unable to walk and stand for more than a few minutes without rest. The impairment resulting solely from the Veteran’s right knee was not described as the combination of both knee disabilities caused the greatest functional impact. In September 2019 the Veteran received a new right knee sleeve which he noted made him feel better immediately. The Board emphasizes that consideration for a TDIU must be based solely on the impairment caused by a service-connected disability. In this case, while the impairment caused by the Veteran’s right knee disability has obviously caused problems in his day to day life, and does impact his ability to work a physical job, there is nothing in the Veteran’s record that indicates that he would be totally unable to obtain any type of gainful employment as a result of his right knee disability alone. In addition, based on the Veteran’s own statements it appears that nonservice-connected issues including diabetes, hypertension, fainting spells, and poor eyesight are additional factors that have led him to no longer be able to operate heavy machinery for DOT. The Board acknowledges the Veteran’s assertions regarding his symptoms and the effects of his service-connected disability on his ability to obtain and maintain substantially gainful employment. However, after thorough consideration of the record, the Board concludes that the preponderance of the evidence demonstrates that the Veteran’s right knee disability alone was not so significant as to preclude him from obtaining and maintaining gainful employment. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Andrew Ledman II 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.