Citation Nr: 21004618 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-09 460 DATE: January 27, 2021 ORDER Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities are not shown to preclude the Veteran from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1984 to December 1986. In a September 2020 decision, the Board found entitlement to a TDIU on an extraschedular basis was raised by the record under Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), and remanded the issue for further development. Thereafter, the Agency of Original Jurisdiction (AOJ) adjudicated the issue in the first instance and issued a supplemental statement of the case (SSOC). Under these circumstances, appellate review may proceed without prejudice to the Veteran. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant 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 ultimate 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. Id. The Board is precluded from assigning an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As noted above, the issue of entitlement to extraschedular TDIU was adjudicated by the AOJ in the first instance. See SSOC dated September 2020. Here, the Veteran does not meet the schedular rating criteria for a TDIU. He is service connected for right knee, degenerative arthritis at 30 percent; right knee, post-operative residuals of patella tendon rupture at 10 percent; left knee, residuals of patella tendon rupture at 10 percent; left knee, instability at 10 percent; right knee scar rated noncompensable. The Veteran has a combined disability rating, with bilateral factor, of 50 percent. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. As the Veteran does not meet the applicable percentage standards, the Board must consider whether the Veteran is nevertheless unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(b). After a review of the competent evidence of record, the Board finds that entitlement to a TDIU on an extraschedular basis is not warranted. Records from the Social Security Administration (SSA) dated November 2015 show that the Veteran was determined “not disabled” for Social Security purposes. SSA records showed past work was as a factory worker with employment ending in 2006. Based on disability evaluations conducted by medical professionals, the SSA determined that the Veteran’s conditions (which he claimed disabled due to arthritis, bad knees, high blood pressure, emphysema, and depression) were not severe enough to keep him from working. See SSA records received September 2020. In particular, great weight was given by SSA of an opinion from non-treating physician, S.S., M.D., finding that the Veteran “can stand, walk and sit for 8 hours in an 8 hour day” and “can carry 20-30lbs frequently and 40-60lbs occasionally.” See SSA disability evaluation from S.S., M.D. dated October 2015. The non-treating physician stated that the Veteran’s “ability to sit, stand, walk, lift, carry, and handle objects may be slightly affected.” Id. The SSA determination noted although the Veteran “should avoid climbing ladders, ropes, scaffolds, unprotected heights and dangerous machinery,” he was deemed “capable of performing medical and light work” and able to “adjust to other work.” See SSA records received September 2020. An August 2019 VA contract examiner indicated that the Veteran’s bilateral knee disability impacted his ability to work. The examiner described the functional impact of the Veteran’s service-connected right knee due to knee brace wearing as affecting kneeling, standing/walking prolong distance, climbing steps or sitting at a desk without ability to extend right knee. The examiner added left knee with arthritis impacts “repetitive use as kneeling, squatting, bending, climbing stairs.” A January 2020 VA examiner noted evidence of bilateral osteoarthritis and indicated the Veteran’s service-connected knee conditions impacted his ability to work. The examiner described the functional impact of each condition as, “constant bilateral knee pain that increases with weight bearing and exposure to cold damp weather.” A review of the evidence of record, taken in total, does not suggest that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected knee disabilities. As demonstrated above, the SSA determined the Veteran was “capable of performing medical and light work” and relied on the findings of a non-treating physician indicating that the Veteran’s physical ability was only “slightly affected.” Indeed, the August 2019 and January 2020 VA examiners indicated the Veteran’s bilateral knee arthritis resulted in some functional limitations. However, the examiners did not find that the Veteran’s knee disabilities were of such severity to render him unable to obtain or maintain substantially gainful employment. Further, the Veteran has also not identified or submitted any competent evidence demonstrating that his service-connected disabilities preclude him from securing and maintaining substantially gainful employment. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Accordingly, TDIU on an extraschedular basis is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.