Citation Nr: 21064986 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 11-12 186 DATE: October 22, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT The service-connected disabilities are shown to preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1971 to March 1973. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the RO. The Veteran testified before the undersigned in a February 2014 video-conference hearing. A transcript of the hearing is included in the electronic claims file. In an October 2017 decision, the Board denied entitlement to a TDIU rating. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the Court granted the parties' Joint Motion for Remand (Joint Motion), vacated the October 2017 decision, and remanded the issue to the Board for additional development of the record. In particular, the parties agreed that the Board's statement of reasons and bases for its denial of a TDIU rating was inadequate because the Board failed to reconcile its finding that a May 2017 VA examination opinion did not establish that the Veteran was unable to engage in substantially gainful employment due to his service-connected knee disability with the May 2017 examiner's notation that the Veteran was unable to engage in sedentary employment due to medication specifically prescribed for the service-connected right knee disability. In October 2018, the Board remanded the issue for further development of the record. Specifically, the Board instructed the Agency of Original Jurisdiction (AOJ) to refer the claim to the Director of Compensation service for an opinion as to whether the Veteran was entitled to a TDIU rating on an extraschedular basis. In February 2020, the Director of Compensation Service provided the advisory opinion. In an April 2020 decision, the Board again denied entitlement to a TDIU rating. The Veteran appealed the Board's decision to the Court. In June 2021, the Court granted the parties' Joint Motion, vacated the April 2020 decision, and remanded the issue to the Board for additional development of the record. In particular, the parties agreed that the Board's statement of reasons and bases for its denial of a TDIU rating was inadequate because the Board neither adequately addressed the probative weight assigned to certain medical evidence of record, specifically VA examinations from August 2015 and May 2017, nor did it provide an adequate explanation for consideration of the Veteran's occupational, educational, and medical history in its determination that he is capable of engaging in sedentary employment. 1. Entitlement to a TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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 a result of a single service-connected disability ratable at 60 percent or more or, as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. In this case, service-connection is currently in effect for posttraumatic stress disorder (PTSD) (50 percent disabling), right knee arthritis (20 percent disabling) and arthroscopic repair of the right knee tendonitis and instability (10 percent disabling); the combined rating for all these service-connected disabilities is 60 percent. The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. A November 1997 VA joints examination documents that the Veteran worked as a city bus driver and experienced right knee swelling that caused pain and discomfort when he worked the brake or gas pedal. A September 2000 VA joints examination reflects that the Veteran had ongoing right knee problems that he felt prevented his employability as a bus driver because his knee would swell. The March 2013 VA examination documents that the Veteran's right knee disability impacted his ability to work as it prevented manual employment but not sedentary employment. A January 2015 letter from the Veteran's friend reflects that the Veteran is unable to work given that he has ongoing pain in his right leg and back that requires daily medication. A later January 2015 letter reflects that the Veteran's "illness" has affected his ability to be employed (i.e., his employment) since approximately 1998. The Veteran's friend argued that the Veteran was 100 percent disabled because of both service-connected and non-service-connected disabilities. An additional January 2015 letter reflects that the Veteran was unable to drive due to his knee problem. The letter indicated that the Veteran underwent back surgery, right knee surgery, heart surgery and had gangrene at the right ankle. The August 2015 VA knee and lower leg conditions examination reflects that the Veteran's right knee disability severely affected his ability to perform the occupational tasks of a bus driver. It limited his ability to drive, sit correctly, bear weight on his knee or walk correctly without assistance devices. The August 2015 VA PTSD examination documents that the Veteran's PTSD results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The Veteran's January 2015 application for a TDIU rating indicated that he last worked full-time in 1998. He had completed 2 years of college and had no further education or training. The May 2017 VA knee and lower leg conditions examination reflects that the Veteran's right knee disability impacted his ability to perform the occupational tasks. The physician stated that the Veteran was unable to engage in prolonged standing, walking, and squatting. The physician reported that the Veteran was unable to perform light, moderate, or heavy manual labor or to drive for prolonged periods. Further, the physician found that the Veteran was unable to engage in sedentary employment due to his chronic use of a Class II controlled drug, hydrocodone, which affected judgment required for sedentary jobs such as clerical, telephone solicitation and the like. The physician reported that due to the Veteran's use of the medication (Class II controlled drug - hydrocodone), he was unable to pass a department of transportation (DOT) physical examination and could no longer drive a commercial vehicle - the type of employment for which he was trained. The June 2017 VA knee and lower leg conditions examination reiterates both physical disability and educational history. The examiner reported that during the examination, the Veteran showed moderate restricted range of motion with subjective reports of pain with minimal palpation of his right knee. The Veteran also voiced subjective complaints of difficulty with prolonged sitting and standing. The examiner opined that while the Veteran may be unable to retain gainful employment in a position which would require prolonged standing or sitting without breaks, he could perform in a sedentary job which would allow him to take breaks from prolonged sitting as needed. The June 2017 VA examination addendum reflects the psychologist's opinion that the Veteran's PTSD symptoms ranged from mild to moderate and did not cause major occupational impairments. The psychologist noted that the Veteran reported that his chronic pain issues were the cause of his occupational problems. In an opinion received in February 2020, the Director of Compensation Service determined that the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented the Veteran's employment. Noting review of the evidence of record, the director explained that the Veteran PTSD symptoms were asymptomatic but ranged from mild to moderate and did not cause major occupational impairments. In addition, though the Veteran had moderate restricted range of motion with subjective report of pain with minimal palpation of the right knee, the evidence showed that the Veteran could engage in sedentary employment that would allow him to take breaks from prolonged sitting as needed. The Director concluded that entitlement to extra-schedular TDIU benefits was not established. In the June 2021 Joint Motion, the parties agreed that the Board's statement of reasons and bases for its denial of a TDIU rating (in the April 2020 decision) was inadequate because the Board neither adequately addressed the probative weight assigned to certain medical evidence of record, nor did it provide an adequate explanation for consideration of the Veteran's occupational, educational, and medical history in its determination that he can engage in sedentary employment. The parties found that the Board failed to explain why it assigned greater probative weight to the opinion provided in the June 2017 VA examination report (that while the Veteran may be unable to retain gainful employment in a position which would require prolonged standing or sitting without breaks, he could perform in a sedentary job which would allow him to take breaks from prolonged sitting as needed) over the opinions provided in the VA examination reports in August 2015 (the Veteran's right knee disability impacted his ability to perform the occupational tasks of a bus driver given that the right knee disability limited his ability to drive, sit correctly, bear weight on his knee or walk correctly without assistant device) and May 2017 (the Veteran was unable to perform light, moderate or heavy manual labor or to drive for prolonged periods and was unable to engage in sedentary employment due to his chronic use of a Class II controlled drug, hydrocodone, which affected judgment required for sedentary jobs such as clerical, telephone solicitation and the like). See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Furthermore, the parties explained that in determining that the Veteran could engage in sedentary employment, the Board did not explain how it interpreted the meaning of sedentary work based on the particular circumstances of the Veteran's claim and did not discuss the Veteran's occupational and educational history in the context of his ability to obtain sedentary employment. See Withers v Wilkie, 30 Vet. App. 139, 147-148 (2018). Considering the parties' June 2021 Joint Motion, on this record, the Board finds that the evidence is in equipoise in showing that the Veteran's service-connected disabilities preclude him from realistically obtaining and maintaining any form of gainful employment, consistent with his work and education background. The Veteran was mostly employed as a driver/bus driver and was unable to perform light, moderate, or heavy manual labor or to drive for prolonged periods. Further, he was found unable to engage in sedentary employment due to his chronic use of a Class II controlled drug, hydrocodone, which affected judgment required for sedentary jobs such as clerical, telephone solicitation and similar positions. In short, the evidence is in equipoise in showing the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity, consistent with his work and education background due to his service-connected disabilities, specifically his service-connected right knee disabilities (i.e., his service-connected disabilities are preventing him from maintaining substantially gainful employment). Thus, the Board finds that a grant of a TDIU rating on an extraschedular basis is warranted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.