Citation Nr: 21063294 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-20 361 DATE: October 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis November 3, 2016 to October 16, 2018 is denied. FINDING OF FACT For the period from November 3, 2016 to October 16, 2018, the evidence does not demonstrate that the Veteran's service-connected left knee or left lower extremity radiculopathy disabilities alone preclude her from obtaining or maintaining substantially gainful employment consistent with her education and experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU from November 3, 2016 to October 16, 2018, on an extra-schedular basis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the North Carolina Army National Guard, which included a period of active duty from June to August 1981. This matter is before the Board on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis November 3, 2016 to October 16, 2018 is denied. An August 2020 Board decision granted entitlement to a TDIU due to the Veteran's service-connected major depressive disorder prior to November 3, 2016. The Board dismissed, as moot, entitlement to a TDIU from October 16, 2018, onward. The Veteran has been awarded a TDIU effective April 2, 2014. The issue in this appeal is premised on an assertion that she was unemployable on an extraschedular basis for the period from November 3, 2016, to October 16, 2018, based on service-connected left knee and left lower disability for purposes of establishing entitlement to special monthly compensation (SMC) based on the statutory housebound criteria. Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). For the period on appeal, the Veteran has received a schedular 100 percent rating for a major depressive disorder. The issue before the Board is whether the Veteran is entitled to a TDIU on an extraschedular basis to satisfy the remaining requirement for SMC of service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the major depressive disorder. From November 3, 2016, the Veteran was evaluated for her left knee disability at 10 percent and from May 23, 2018 she had a 40 percent combined evaluation for left knee and radiculopathy disabilities. The Veteran did not have a single service-connected disability, apart from her major depressive disorder, of at least 60 percent or more than one service-connected disability with at least a combined 70 percent rating. The Veteran does not meet the criteria for a schedular TDIU for the period on appeal. 38 C.F.R. § 4.16(a). Where, as here, the veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The service-connected disabilities, employment history, educational and vocational attainment, and all other factors bearing on the issue would be addressed if such a referral was made. 38 C.F.R. § 4.16(b). For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with equal rating of disability. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). For the reasons below, the Board find the Veteran was not unemployable as a result of left knee and left lower extremity disability during this timeframe. Analysis From November 3, 2016, to October 16, 2018, service connection had been established for major depressive disorder (rated as 100 percent disabling); left knee chondromalacia patella (rated as 10 percent disabling); and effective May 23, 2018 degenerative joint disease status post total left knee replacement and arthroscopic repair (rated as 10 percent disabling); neuropathy, left lower extremity (rated as 20 percent disabling). From November 3, 2016, the Veteran was evaluated for her left knee disability at 10 percent and from May 23, 2018 she had a 40 percent combined evaluation for left knee and radiculopathy disabilities. Given the 100 percent disability rating for major depressive disorder, the Board cannot consider major depressive disorder in evaluating entitlement to a TDIU during the period from November 3, 2016 to October 16, 2018, as an award based on such would constitute a "duplicate counting of disabilities." See Bradley v. Peake, 22 Vet. App. 280 (2008). Even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, a TDIU may be granted on an extraschedular basis in exceptional cases when the 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 Veteran completed high school and has worked as an administrative clerk or seamstress. She reports she last worked in 2010 and that she ceased working due to multiple medical conditions. As to whether the Veteran is disabled due to a left knee or lower extremity radiculopathy service-connected disability, Social Security Administration SSA records show the Veteran was determined to be disabled and unable to work due to degenerative disc disease of the spine, carpal tunnel syndrome, degenerative joint disease of the knees, and obesity. See April 2012 Decision. The Veteran claimed SSA disability based on limitations from lumbar spine and lumbar radiculopathy disabilities. The Board is obligated to distinguish between service-connected and non-service-connected disabilities. The radiculopathy which is service connected is the result of a surgical procedure for the Veteran's left knee. The radiculopathy mentioned in the Veteran's VA treatment records, relied upon by the SSA, is referred to as a L5 radicular pain and lumbar radiculopathy with pain and weaknesses beginning in the left buttock and traveling down to her toes with numbness effecting her left thigh. These symptoms are not described as being related to her left knee disability. The Veteran also reported at a January 2015 VA examination regarding her left knee disability that she was unemployed since 2010 due to multiple medical conditions. See January 2015 VA Examination. The Veteran reported that she experienced significant limitations from her left knee disability and that she ceased working in 2010 due to her left knee. The Veteran is not service connected for a right knee disability and is not service connected for lumbar spine disability. Here, her assertions of ceasing work in 2010 due to left knee disability are contradicted by the Veteran's prior claim for SSA benefits due to from lumbar spine and lumbar radiculopathy disabilities. The Board referred the claim to the Director of VA's Compensation Service in April 2021. The Director provided an opinion in May 2021. See May 2021 Opinion. The Director noted that while the Veteran had limitations caused by a service-connected knee and radiculopathy disabilities, these conditions, alone or in conjunction, did not preclude all forms of substantially gainful work activity. The Director noted the Veteran had a work history involving employment at various sewing factories and as an administrative clerk at a rental car company. The Director noted that the Veteran had flexion to 100 degrees without subluxation or instability and mild to moderate impairment from left lower extremity radiculopathy, associated with left knee disability, did not preclude all forms of employment from November 3, 2016, to October 16, 2018. In determining whether the Veteran is entitled to a TDIU based solely on the limitations from her left knee or left lower extremity disabilities, the Board has considered the Veteran's level of education, special training, and previous work experience. See 38 C.F.R. § 4.16. The Veteran reported she previously worked as a referral specialist for medical patients and walked one hour in a day, stood for one hour, and sat for 6 hours. See August 2010 SSA Record. She also worked as a manager of donor gifts and research and walked one hour in a day, stood for one hour, and sat for 6 hours. The Veteran also worked as a title clerk and walked one hour in a day, stood for one hour, and sat for 6 hours, and climbed for a quarter of an hour. The Veteran reported she carried less than ten pounds for the referral specialist and manager positions, and she carried twenty pounds occasionally as a title clerk. Given the Veteran's prior work history, the Board finds her left knee disability alone prior to May 23, 2018 and in conjunction with her left lower extremity radiculopathy as of that date would have impacted her ability to work, but not precluded her ability to work. The bulk of her job duties were performed while sitting. The Veteran has not presented a plausible scenario in which her left knee disability and eventually the radiculopathy from the left knee would have impeded the execution of her job duties. She asserts blanketly instead that she was unemployable due to her knee. Her assertions are contradicted by extensive evidence indicating that her lumbar spine, carpal tunnel syndrome, and bilateral knee disabilities contributed to her unemployability, as demonstrated by her reports to SSA and the findings from the April 2012 decision. The probative evidence of record shows that the collective impact of the Veteran's service-connected disabilities and non-service-connected disabilities, as opposed to her left knee and her left lower extremity disabilities alone, precluded her from obtaining or maintaining substantially gainful employment from November 3, 2016, to October 16, 2018. Accordingly, the preponderance of the evidence is against a finding that a TDIU on an extraschedular basis is warranted, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.