Citation Nr: 21061259 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 06-36 948 DATE: October 1, 2021 ORDER Entitlement to an extraschedular total disability rating due to individual unemployability (TDIU) is granted. Entitlement to an initial rating in excess of 10 percent for a right knee disability on an extraschedular basis is denied. REMANDED Entitlement to an initial schedular rating in excess of 10 percent for a right knee disability is remanded. FINDINGS OF FACT 1. The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. 2. The functional impairment manifested by the Veteran's right knee disability is adequately contemplated by the rating schedule. CONCLUSIONS OF LAW 1. The criteria for entitlement to an extraschedular TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). 2. The criteria for entitlement to an initial rating in excess of 10 percent for a right knee disability on an extraschedular basis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b), 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from December 1968 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in August 2009. The Board remanded this appeal for additional development in February 2011, November 2012, May 2017, February 2018, and May 2019. The Board acknowledges the Veteran's report of an impending right knee replacement. However, it will adjudicate the appeal as to entitlement to a TDIU without delay, as the present record supports a full grant of that benefit. The Board has bifurcated schedular and extraschedular aspects of the issue of entitlement to an increased initial rating for a right knee disability. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of an issue is generally within the Board's discretion). 1. Entitlement to an extraschedular TDIU is granted. In February 2011, the Board raised the issue of entitlement to a TDIU as part of the increased rating issue on appeal. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Throughout the appeal, the Veteran is in receipt of service connection for major depressive disorder rated 30 percent disabling, a right knee disability rated 10 percent disabling, bilateral tinnitus rated 10 percent disabling, and a right knee scar rated zero percent disabling. He does not meet the schedular criteria for a TDIU, as his combined disability evaluation is 40 percent. If the percentage requirements of 38 C.F.R. § 4.16(a) are not met, a TDIU may still be granted on an extra-schedular basis where a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board lacks the power to award an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, the Director has denied entitlement to an extraschedular TDIU. See January 2021 VA Memorandum. Thus, the Board has the authority to award an extraschedular TDIU. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran has not submitted a VA Form 21-8940 (Application for Increased Compensation due to Individual Unemployability). However, he is in receipt of Social Security Administration (SSA) disability benefits, and the SSA documents are of record and provide the Board will adequate information to adjudicate this issue. The evidence shows that the Veteran last worked on July 31, 2005, and that he does not receive income from employment exceeding the federal poverty threshold. See SSA Disability Determination. This in accord with the economic component of entitlement to an extraschedular TDIU. Regarding the noneconomic component, the Veteran reported that he has two years of college education and worked as a merge sort operator in a warehouse from 1973 to 2005, when he took early retirement. See SSA Records. His work involved running a conveyer system and watching groceries on the conveyor belt and required many hours of walking, sitting, and climbing, with some stooping and kneeling and reaching. He was required to regularly to lift objects up to 40 pounds and carry them up to five feet. He was not a lead worker or supervisor. See id. The SSA determined that the Veteran was disabled due to affective disorders. An SSA psychiatric examination diagnosed the Veteran with anxiety disorder not otherwise specified with posttraumatic stress features and major depressive disorder single episode, without psychotic features with considerable agitation. See June 2006 SSA Psychiatric Examination Report. The SSA examiner noted that the Veteran's affective disorder was a "depressive syndrome" and stated that the degree of limitation from psychiatric disorders was "marked" in the areas of activities of daily living, social functioning, and the ability to maintain concentration, persistence, and pace. See id. An April 2011 VA examiner diagnosed recurrent, moderately severe major depressive disorder. However, the examiner did not discuss the Veteran's functional limitations in detail. See April 2011 VA Psychiatric Examination. An April 2016 VA examiner diagnosed recurrent, moderate major depressive disorder. The examiner noted that the Veteran is able to engage in driving and perform basic activities of daily living and assessed moderate impairment in all areas. Notably, the examiner noted that the Veteran's psychiatric disability would impair his ability to work a regular schedule without excessive absences to a "moderate" extent and would impair his ability to arrive at work on time to a "moderate" extent. The Veteran also presented for several VA knee examinations during the appeal. This issue is still on appeal, and presumably more severe symptoms could be noted following the Veteran's total knee replacement. However, at the March 2011 examination, the examiner noted that the Veteran's right knee disability would affect his ability to walk or stand for prolonged periods but would not preclude him from finding employment that involved sedentary work. The examiner explained that the Veteran's prior job was "sedentary" within the meaning of that term and that, since he left that job due to his back disability, the Veteran's right knee disability does not make him unemployable. See March 2011 VA Knee Examination Report. Here, the evidence shows that prior to April 17, 2012, the Veteran's service-connected disabilities, alone, precluded him from securing or following a substantially gainful occupation. Although the Veteran retired due to service-connected and nonservice-connected disabilities, the evidence shows that he was working through pain up until his retirement. While the December 2010 VA examiner stated that the Veteran "might" be able to work at a sedentary occupation, this speculative statement does not weigh against entitlement to a TDIU. Here, the March 2011 examiner explained that the Veteran's occupation was "sedentary" as he used the term, and that his right knee disability would not preclude such employment. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). However, that examiner did not consider the limitations from the Veteran's service-connected psychiatric disorder. The most probative evidence as to those limitations is the June 2006 SSA psychiatric examination report, which shows the Veteran's limitations as "marked" and is closest to the time that he retired, demonstrating his limitations under the ordinary conditions of work and life. In contrast, the subsequent VA examinations are less probative, as they show his limitations years after retirement. In any event, the Board finds that "moderate" limitation in ability to be punctual and avoid excessive absences is critical in the Veteran's position and combined with his physical limitations would likely preclude him from securing and maintaining substantially gainful employment. While the evidence as to this point is not dispositive, the Board resolves this reasonable doubt in favor of the Veteran. The Board acknowledges that no VA examiner opined that the Veteran would be unemployable by reason of service-connected disabilities. However, the ultimate determination as to entitlement to a TDIU is made by VA adjudicators, rather than medical examiners. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, as the probative evidence of record weighs in favor of the claim, entitlement to an extraschedular TDIU is warranted. The Board will limit the present decision to the award of an extraschedular TDIU to avoid prejudice to the Veteran, and if the Veteran disagrees with the effective date assigned by the RO he may seek review of that decision by filing the appropriate VA form. See Urban v. Principi, 18 Vet. App. 143 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993). 2. Entitlement to an initial rating in excess of 10 percent for a right knee disability on an extraschedular basis is denied. The Veteran, through his representative, raised the issue of entitlement to an increased rating for a right knee disability on an extraschedular basis. See July 2019 Appellate Brief. An extraschedular rating may be warranted where a veteran's disability picture is unusual or exceptional and where the functional impairment is not contemplated by the schedular rating criteria. See Thun v. Peake, 22 Vet. App. 111 (2008). The rating schedule includes a powerful tool that adequately compensates the Veteran a TDIU. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). The Board is obliged to consider entitlement to a TDIU prior to the referral for an extraschedular rating. Id. As discussed above, the Veteran is entitled to a TDIU. This adequately compensates the Veteran for his service-connected disabilities. Thus, the rating schedule adequately contemplates the Veteran's service-connected disabilities, and entitlement to an extraschedular rating for a right knee disability is not warranted. However, this does not impact the issue of entitlement to a higher schedular rating for a right knee disability, which is discussed below. REASONS FOR REMAND 3. Entitlement to an initial schedular rating in excess of 10 percent for a right knee disability is remanded. In January 2021, the RO issued a Supplemental Statement of the Case (SSOC). Initially, the Veteran stated that he had no additional evidence to submit and requested his appeal be transferred to the Board. See February 2021 Correspondence. However, he subsequently submitted additional relevant medical records relating to his upcoming right knee total replacement and requested "further review" of his appeal. See June 2021 VA Form 21-4138; June 9, 2021 Private Treatment Record (pre-op appointment). Under the regulations governing this appeal, the Veteran is not presumed to have waived RO consideration of these records. Indeed, his request for further review reflects an affirmative desire for RO review of these records in the first instance. Moreover, this evidence indicates a worsening of the Veteran's right knee disability warranting re-evaluation. On remand, he should be afforded an updated examination following his knee replacement surgery. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records, to include records documenting the Veteran's reported upcoming right knee total replacement. See July 2021 VA Form 21-4138; Medical Treatment Records Received July 1, 2021. 3. After and only after the Veteran has undergone right knee replacement, schedule the Veteran for an examination as to the severity of his right knee disability. Please note that this is a post knee-replacement examination, so please follow any protocol attached to such examinations (i.e. scheduling the examination after allowing any post-surgery convalescent period). If the Veteran reports that the knee replacement surgery is cancelled, no further examination is necessary. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.