Citation Nr: 21061667 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 09-50 539 DATE: October 5, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU), including on an extra-schedular basis, is denied. FINDINGS OF FACT 1. The Veteran has a service-connected left knee disability that has been rated as 30 percent disabling effectively since September 18, 1998. The rating for this disability does not meet the schedular requirements for entitlement to a TDIU. 2. In December 2015, the Board remanded this TDIU claim so it could be referred to the Director of VA's Compensation Service for consideration of whether this benefit alternatively is warranted on an extra-schedular basis. 3. This service-connected disability does not preclude the Veteran from obtaining and maintaining substantially gainful employment consistent with his level of education, prior work experience and training. CONCLUSION OF LAW The criteria are not met for entitlement to a TDIU, including on an extra-schedular basis. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1982 to May 1985. This appeal to the Board of Veterans' Appeals (Board) originated from a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, the Board remanded this TDIU claim back to the RO so it could be referred to the Director of VA's Compensation Service for consideration of whether this benefit is warranted on an extra-schedular basis. The Director determined in March 2016 that this benefit was not warranted on an extra-schedular basis, so this claim was returned to the Board for further appellate consideration. In July 2017, the Board issued a decision denying this TDIU claim including on an extra-schedular basis, and in response the Veteran appealed the Board's denial of this claim to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In a February 2019 Memorandum Decision, the Court vacated (set aside) the Board's decision denying this claim and remanded it back to the Board for further development and readjudication in compliance with directives specified. Specifically, the Court found that the Board's reasons and bases were unsupported by the evidence of record and that the Board did not consider the Veteran's training, work history, and education. In September 2019, the Board, in turn, again remanded this claim back to the RO for still more development including to obtain any outstanding treatment records relevant to this claim, whether from VA and/or private sources and in relation to Social Security Disability (if determined the Veteran receives it), also to provide him notice of how to substantiate this type of claim and submit an official TDIU application (VA Form 21-8940), to obtain his Internal Revenue Service (IRS) tax returns from 2006 to 2018, and then to have him undergo a VA examination to assess the functional impact of his service-connected left knee disability that, in turn, would assist VA adjudicators in readjudicating this claim in compliance with the Court's directives. There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to a TDIU The Veteran contends that the service-connected Osgood-Schlatter's disease of his left knee precludes him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. An award of a TDIU requires a Veteran be unable to obtain or maintain a substantially gainful occupation because of service-connected disability. For schedular consideration, if, like here, there is just one service-connected disability, it must be rated as at least 60-percent disabling. See 38 C.F.R. § 4.16(a). The Veteran has had a 30 percent rating for his left knee disability effectively since September 18, 1998, so for the entirety of the rating period under review. Because this is his only service-connected disability, it does not meet the threshold schedular rating requirements for a TDIU according to § 4.16(a). Nevertheless, entitlement to a TDIU still may be granted in this circumstance albeit, instead, on an extra-schedular basis under the special provisions of § 4.16(b), if it is shown the Veteran is unemployable because of the service-connected disability. Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran's service-connected disability, alone, severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court clarified that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. §§ 4.1, the degrees of disability specified in the Rating Schedule 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. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm for a claim for a TDIU to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment. This was the reason the Board remanded this claim in December 2015 since the Board is precluded from granting a TDIU on extra-schedular basis in the first instance, having instead to first refer the matter to the Director of the Compensation Service for this initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). This does not, however, preclude the Board from determining whether this special consideration is warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). But, by the same token, consider also that the Director's decision is not evidence, but, rather, the de facto Agency of Original Jurisdiction (AOJ) decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extra-schedular consideration). The Court since has reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying an extra-schedular rating and elaborated that the Board is authorized to assign an extra-schedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Although the Board is required to obtain the Compensation Service Director's decision before awarding extra-schedular TDIU benefits, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages, 27 Vet. App. at 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)). Moreover, merely because the Board determined that extra-schedular consideration of the claim was warranted does not, in turn, ultimately mean the Board is obligated to grant this benefit. On March 14, 2019, so during the pendency of this appeal, the Court (CAVC) issued a panel decision in Ray v. Wilkie, 31 Vet. App. 58 (2019), which: 1) addressed the effect of the Board's referral of a case for extra-schedular consideration of a TDIU under 38 C.F.R. § 4.16(b) when the Board later reviews the Director's decision not to award an extra-schedular total disability rating; and 2) formulated a definition for "substantially gainful employment" under § 4.16(b). Here were the main takeaways: The Board's determination to refer a case for extra-schedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extra-schedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board "must provide adequate reasons or basis for deviating from its earlier referral decision." "Substantially gainful employment" contains economic and noneconomic components; 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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Turning now to the relevant evidence in this case at hand, in July 2006, the Veteran was awarded disability benefits from the Social Security Administration (SSA). The Veteran reported to the SSA that he was previously employed as a Correctional Officer, Supplies Supervisor, and Police Officer. In his duties as a Supplies Supervisor and Police Officer, he reported writing, completing reports, and engaging in other similar type work. The SSA found that he had not engaged in substantial gainful activity since May 10, 2004 owing to his chronic low back pain, left knee osteoarthritis, post trauma left ankle with osteoarthritis and recurrent major depression. Thus, several disabilities were cited, not just his service-connected left knee disability. Moreover, and in any event, VA is not bound by SSA's decisions because the agencies have different disability requirements. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). That said, this other Federal agency's findings nonetheless may be relevant to this VA claim. See Martin v. Brown, 4 Vet. App. 136, 140 (1993). In September 2010, a VA examiner opined that the Veteran is unable to perform his duties as a police officer due to his left knee and ankle condition. So there again was mention of both service-connected and nonservice-connected disability. On June 17, 2013, VA released a Fast Letter, which is binding on the RO but not the Board. The stated purpose of which was "to revise and clarify VA procedures relating to claims for total disability ratings based on individual unemployability (TDIU)." The changes noted included the following: VA will require the claimant complete and submit VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to substantiate the claim of TDIU; VA will administratively deny TDIU claims if VA requests, but the Veteran does not submit, required forms or evidence. Under the heading "Requirement for VA Forms 21-8940 and 21-4192," the following was stated: "[i]f a claim for TDIU has been expressly or reasonably raised by the evidence of record, but a current VA Form 21-8940 [so TDIU application] is not on file, provide it to the Veteran for completion. Before VA will consider a claim for IU the Veteran must complete a VA Form 21-8940, and the Veteran with multiple service-connected disabilities must specify one or more service-connected disabilities that he or she believes cause the unemployability. It was instructed that if the Veteran fails to complete and return the VA Form 21-8940, the claim would be denied." Guidance concerning that June 17, 2013, VA Fast Letter indicates that a substantially complete VA Form 21-8940 (TDIU application) is required to establish entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. The form concludes with a series of sworn certification statements, and in endorsing it a Veteran both attests to his/her employment status and signals understanding of the TDIU benefit's incompatibility with substantially gainful work. A properly signed and executed VA Form 21-8940 enables VA to gather the information necessary to determine the Veteran's entitlement to a TDIU and recover TDIU compensation that is later discovered to have been awarded on fraudulent terms. In March 2016, the AOJ recommended that a TDIU be granted due to the Veteran's service-connected disability. The AOJ noted that, in making the decision, however, the Veteran had not completed an official TDIU application (VA Form 21-8940) and, therefore, the AOJ (RO) did not have any additional information concerning his education or employment. Nonetheless, a recommendation was made to grant entitlement to a TDIU based on the September 2010 VA examiner's opinion that the Veteran is unable to comply with physical tasks of his police job due to his left knee disability, as well as the SSA's disability determination. After addressing the relevant evidence of record, including that September 2010 VA medical opinion concerning the functional impact of the Veteran's service-connected disability (see Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013)), the Director of the Compensation Service determined in March 2016 that a TDIU on an extra-schedular basis is not warranted. The Director concluded that, when taken as a whole, the preponderance of the medical evidence of record does not establish that the service-connected left knee condition is of such severity so as to preclude maintaining gainful employment, including sedentary tasks, due solely to this service-connected left knee disability. The Director reasoned that, although the September 2010 VA examiner opined that the left knee disability would create problems in carrying out the Veteran's role as a police officer, it does not prohibit engaging in sedentary employment. Furthermore, the Director determined that the reliance on the SSA's determination was misplaced as the SSA awarded benefits to not only the knee condition but also non-service-connected disabilities such as affective or mood disorders. Since the CAVC's remand of this claim back to the Board and the Board's, in turn, remand of this claim back to the RO (AOJ), further development has occurred. For one, the Veteran submitted an official TDIU application (VA Form 21-8940) in February 2020. He listed his occupation as a police officer and reported that he was last employed in January 2005. He also reported completing four years of high school and that he was terminated by his last employer because he was unable to perform the job due to his left knee, back injury, herniated disc, and left ankle plate with screws. Again, then, there was mention of several disabilities, not just his left knee disability. Moreover, the letter of termination provides a different explanation for his termination. The reason for the termination was his failure to return to work after being discharged from his treatment. The termination letter explains that he was released from treatment in February 2005 and that, as of September 2005, he had not returned to work. Therefore, the termination was not based on his inability to perform his job, per se, rather on his failure to return to work after completing his medical treatment. The report of an April 2021 VA examination shows the Veteran reported that his left knee disability prevents him from walking over 100 feet and that he cannot lift and carry weight as he walks. The VA examiner conceded the Veteran's left knee disability would prevent him from engaging in employment activities that included walking or standing, but also concluded that he is still capable of performing sedentary work. This VA examiner reviewed the Veteran's prior VA examinations, including the September 2010 examination. The May 2008 VA examiner opined that the Veteran's left knee disability would not prevent him from engaging in work as a police officer. The September 2010 VA examiner concluded the left knee disability would prevent the Veteran from engaging in work as a police officer. However, although the April 2021 VA examiner agreed the Veteran cannot work as a police officer due to his lack of mobility, this examiner ultimately determined the Veteran still can work in a sedentary occupation. This VA examiner reasoned that the Veteran has limited range of motion (ROM) and testing is limited due to his insistence of pain. However, this VA examiner found no indication of joint instability on examination, only pain, and this VA examiner explained the pain comes with weight bearing or movement, meaning sedentary work like security, telephone work, computer work, and administrative positions that do not require advanced educational skills should be tolerated and the Veteran can work these positions despite his left knee pain. When considering the entire record or relevant evidence, the Board finds that there is not the required showing of unemployability in this instance owing to the service-connected left knee disability, even considering the Veteran's training, education, and work history. Even if unable to still work in the field as a police officer, meaning the part of that job requiring the type of physical activity the VA examiners agree is no longer a viable possibility owing to the functional impact of the Veteran's service-connected left knee disability, that occupation and those similar also often may entail office and desk duties and responsibilities. In other words, in considering whether the Veteran can perform substantially gainful employment, the Board is not limiting the discussion solely to his job titles, rather, also the skillset involved, even when working for the police force in some other capacity. The Veteran reported that, in his position as a Police Officer and Supplies Manager, he had to engage in writing, complete reports, and complete other similar tasks. Thus, he has performed sedentary work even in his previous duties in law enforcement. In a rather recent decision, the Veterans Court (CAVC) noted that VA has not explicitly defined the meaning of "sedentary employment." See Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Id. at 149-150. Here, the Board envisions potential sedentary employment to encompass a wide variety of administrative or other forms of employment that would not require the Veteran to spend a significant amount of time on his feet, ambulating or physical activity requiring significant use of his left knee. He has four years of high school so would be capable of a variety of forms of employment that require some degree of writing, arithmetic, or other tasks consistent with this level of education. His education and work experience demonstrate that he is capable of learning new skillsets. Additionally, the Board is not relying solely on one VA examination, including the September 2010 and the April 2021 VA examiners' opinions but, rather, also on the available medical and other records in the file detailing his employment skillset and the various opinions that the service-connected left knee disability is not of such severity as to preclude the completion of sedentary tasks. He does not have service-connected disability affecting either upper extremity, so skills such as writing, typing, reading, doing computations or other administrative tasks are not precluded by his service-connected disability. Because the Board finds that the preponderance of the evidence is against finding that his service-connected disability prevents him from obtaining and maintaining substantially gainful employment, the Board is denying this extra-schedular TDIU claim. The evidence for versus against this claim is not in relative balance (equipoise), so there is no reasonable doubt to resolve in his favor concerning this determinative issue. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.