Citation Nr: 21062363 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 19-02 063 DATE: October 7, 2021 ORDER The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran does not meet the preliminary schedular requirements for a TDIU and a referral for consideration of a TDIU on an extraschedular basis is not warranted as the service-connected disabilities do not result in an inability to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria to establish a claim of entitlement to a TDIU have not been met. 38 U.S.C. §§ 1114, 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.16 (a), (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service with the United States Army from March 1983 to August 1985. This matter is before the Board of Veteran's Appeals (Board) from the rating decision issued in August 2021 by the Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to a TDIU based on the claim of an increased rating for the Veteran's bilateral knee conditions. In February 2021 the Board remanded the Veteran's claim for entitlement to a TDIU for further development of the Veteran's employment history and educational background. Notably, the Veteran did not respond to AOJ attempts to obtain specific employment information. Entitlement to a TDIU The Veteran contends that he is entitled to an award of a TDIU as he indicates he is unable to work due to the symptomatology associated with his knee disabilities. After a thorough review of the evidence, the Board concludes that an award of a TDIU is not warranted. The Veteran filed a December 2019 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, which was found to raise the issue of TDIU as noted in the February 2021 Board remand. Per Harper v. Wilkie, 30 Vet. App. 356 (2018), the issue of entitlement to a TDIU is part of a claim for a higher rating when raised under Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's claims for increased ratings for his right and left knee disabilities have been addressed in a separate Board opinion and will not be addressed herein. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie found the phrase "substantially gainful employment" has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran is service connected for a status post total right knee arthroplasty at 20 percent from September 1, 2016, and 30 percent from September 1, 2018 (excluding periods where a 100 percent temporary total rating was assigned pursuant to 38 C.F.R. § 4.30 for convalescence following surgery); left knee arthritis at 10 percent from December 28, 2011 to October 1, 2015; left knee lateral meniscus tear at 20 percent from December 22, 2011 to October 1, 2015, and 10 percent from December 1, 2015 (excluding a period where a 100 percent temporary total rating was assigned pursuant to 38 C.F.R. § 4.30 for convalescence following surgery); symptomatic left knee meniscal disorder at 10 percent from December 1, 2015 (excluding a period where a 100 percent temporary total rating was assigned pursuant to 38 C.F.R. § 4.30 for convalescence following surgery); left knee scar at 0 percent from November 10, 2015, and a right knee scar at 0 percent from June 20, 2016. With the Veteran's knee and scar disabilities, the Veteran has a combined rating no higher than 50 percent from December 28, 2011 (excluding periods where 100 percent temporary total ratings were assigned pursuant to 38 C.F.R. § 4.30 for convalescence following surgery). He has not met the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). Thus, since none of the Veteran's service-connected disabilities are rated over 40 percent, and the combined rating is not 70 percent or more, he fails to meet the criteria for schedular TDIU as per 38 C.F.R. § 4.16(a). The remaining question is whether referral for extraschedular consideration is appropriate. The Board notes that the Veteran filed applications for a TDIU, VA Forms 21-8940, in November 2019, December 2019, and May 2021. The November 2019 application noted the Veteran last worked in July 1999 due to severe pain and loss of mobility and strength with his focus was affected by pain medication. There were no indications of what specific disabilities prevented the Veteran from employment. The December 2019 application noted the Veteran last worked in July 1999 as a machine operator and the disabilities that prevented him from employment were lumbar radiculopathy, spinal stenosis of the lumbar region, and degeneration of lumbar intervertebral disc of the L4 to L5. The Veteran included that he had constant and severe pain in his back and lower extremities with braces on both knees along with his focus being affected due to pain medications. The May 2021 application indicated severe pain in his bilateral knees, low back, and nerve pain in both of his hips. The application noted he last worked in the year 2000. The Veteran documented his multiple bilateral knee surgeries, his back surgery, and injections to his knees, pelvis, hips, and lumbar spine. April 2019 Social Security Administration (SSA) records indicate that the Veteran worked as a fan blade operator from 1996 to 2001. He was also employed as a construction worker after service. See August 2019 VA Examination. He obtained a high school GED. The Veteran's knee VA examinations from August 2012, September 2016, May 2018, August 2019, and August 2020 noted the functional impact of the Veteran's knees. The August 2012 examiner commented that the Veteran received social security disability "due to knees and wrist." The September 2016 examiner noted that ambulation was limited secondary to pain and that ambulation on a job would be affected. The May 2018 examiner noted an inability to climb ramps, stairs, ladders, ropes, and scaffold; inability to balance on narrow, slippery, or erratic surfaces; inability to stand or walk on level terrain frequently; inability to kneel, crouch, and stoop when bending at the waist; and inability to crawl frequently. The Veteran was noted as being able to do light desk work and sedentary work without any specific restrictions. The August 2019 examiner noted that the Veteran indicated he "can't do stairs". The August 2020 examiner noted that the Veteran used a bilateral knee brace and a rolling walker, although the Veteran reported that he needed the walker "50% with his lumbar pain and 50% for his knee pain." The examiner found the Veteran to have limitations with prolonged standing and walking, climbing, bending, and lifting. The Board notes the Veteran was receiving SSA benefits and was found to be disabled in September 2002 due to his right ulnar issues, gout, and chronic pain. Contrary to the August 2012 VA examiner's notation, the SSA did not indicate the Veteran's knees were considered as part of his finding of disability. As indicated above the Board can only consider the Veteran's service-connected disabilities and is unable to consider the Veteran's right ulnar issues, gout, feet, hips, pelvis, lumbar, and lumbar radiculopathy. The Veteran's knee disabilities and associated scars are not indicated by the Veteran as the reason he is unable to obtain and maintain substantially gainful employment. The Veteran does mention his knees as one of many issues affecting his employability, however, the Veteran includes multiple non-service-connected disabilities that VA is unable to consider as part of a TDIU. While the Veteran's knee disabilities result in difficulty walking and standing for long periods and an inability to climb, crawl, kneel or crouch, a preponderance of the evidence is against a finding that these disabilities alone would preclude him from performing the type of physical and mental activities required to obtain and maintain substantially gainful employment. This is supported by the evidence reflecting that the Veteran has been awarded SSA disability benefits based on various physical disabilities that do not include his knees. The record indicates that he last worked as a machine operator. The evidence tends to show that Veteran is capable of a mostly sedentary position in a machine operator position. As such, the Board finds that the Veteran's knee disabilities and associated scarring do not prevent the Veteran from obtaining and maintaining substantial gainful employment as there is no indication the Veteran would be unable due to those disabilities alone to secure and follow a substantially gainful occupation. As to the Veteran's mental ability, the evidentiary record does not illustrate a deficit due to his service-connected disabilities, nor has the Veteran contended an impairment in his mental ability. As to the Veteran's ability to earn wages similar to a non-disabled person in a substantially gainful employment, the Board finds that the Veteran's employment with his last employer shows he was earning $18,000 to $20,000 a year. See November 2019, December 2019, and May 2021 VA Form 21-8940. The Veteran, in a similar sedentary machine operator position, would likely make the same. Thus, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unable to earn wages common to the particular occupation in the community where he resides. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, while the record reflects that the Veteran's service-connected disabilities cause difficulties at work, unemployability due to these disabilities, alone, has not been shown. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable and the claim of entitlement to a TDIU must be denied. REBECCA N. POULSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.A. Teich, 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.