Citation Nr: 21065125 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-39 776 DATE: October 25, 2021 ORDER For the period on appeal prior to September 18, 2013, a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT For the appeal period prior to September 18, 2013, the Veteran's service-connected left knee disabilities prevented him from obtaining and/or maintaining substantially gainful employment. CONCLUSION OF LAW For the appeal period prior to September 18, 2013, the criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, had active service from May 1999 to August 2003, and is the recipient of a Combat Action Ribbon for service in Iraq. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a February 2017 Board hearing before a Veterans Law Judge who is no longer at the Board. A transcript of the hearing is associated with the claims folder. The Veteran was offered the opportunity to testify at a second Board hearing but declined by way of correspondence received in March 2021. In March 2019, the Board remanded the TDIU claim for further development. In April 2021, the Board granted a TDIU from September 18, 2013, the date the Veteran met the schedular criteria, and remanded the issue of a TDIU prior to September 18, 2013 for consideration by the Director of the Compensation Service under 38 C.F.R. § 4.16(b). On review, the Board finds substantial compliance with its April 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). TDIU Pertinent Laws and Regulations A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Analysis The Veteran contends that a TDIU is warranted for the entirety of the period on appeal as he was unable to obtain or maintain substantial gainful employment. As indicated, he is currently in receipt of a TDIU award beginning on September 18, 2013. Prior to September 18, 2013, the Veteran's combined disability rating for his service-connected disabilities during the appeal period was 20 percent from August 20, 2003 (tinnitus rated as 10 percent disabling; degenerative joint disease, patellofemoral syndrome with tendonitis, left knee, status post arthroscopic surgery, rated as 10 percent disabling); 100 percent from August 14, 2008 for convalescence from left knee surgery; 40 percent from September 17, 2011 (tinnitus rated as 10 percent disabling; degenerative joint disease, patellofemoral syndrome with tendonitis, left knee, status post arthroscopic surgery, rated as 10 percent disabling; left knee instability rated as 30 percent disabling); 100 percent from January 13, 2012, for convalescence from left knee surgery; and 40 percent from April 1, 2012. Accordingly, the Veteran did not meet the minimum schedular requirements for TDIU prior to September 18, 2013. See 38 C.F.R. § 4.16(a). Therefore, the only basis for the assignment of a TDIU in this case prior to September 18, 2013 is on an extraschedular basis. See 38 C.F.R. § 4.16(b). Under Roberson v. Principi, 251 F.3d 1378 (2001) and Rice v. Shinseki, 22 Vet. App. 447 (2009), there is a duty imposed on VA to consider TDIU even when the schedular criteria are not met. VA policy is that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The Board does not have the authority to grant an extraschedular TDIU in the first instance. In this case, an advisory opinion was obtained in June 2021 which found a TDIU on an extraschedular basis was not warranted. The Board, however, is not bound by the Director's decision or limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a) (2012); 38C.F.R. §4.16(b)). The Director's decision is not evidence, but, rather, the de facto decision of the AOJ, and the Board must conduct its own de novo review of the claim. Wages, 27 Vet. App. at 238-39. Turning to the evidence, in a January 2012 VA Form 21-8940, the Veteran noted he had completed four years of high school and two years of college and had taken a course in real estate. In an August 2013 VA Form 21-8940, he indicated that from July 2012 to March 2013, he had worked as a house cleaner with variable hours. On a November 2013 VA Form 21-8940, he indicated his job as a housekeeper had ended in September 2013. In a September 2005 VA knee examination report, the Veteran reported that he previously worked at Subway sandwich from September 2003 to November 2003 and at Discount Tire from January 2004 to July 2004. An MRI of left knee in August 2005 showed no meniscal tear and articular compartments appeared preserved. The Veteran described pain in the medial, lateral, and patella-tibial ligaments when he stood on his weight or walked, and pain was worse with prolonged standing more than ten minutes or walking more than two blocks. He stated he was unable to walk with reduced range of motion in the knee and his left knee gave way on average three days per month and locked three times per month but did not cause him to fall. The examiner indicated the Veteran did not have excess fatiguability but did have lack of endurance, could carry more than 25 pounds and was able to do activities of daily living. He walked with an antalgic gait. A March 2008 VA treatment record noted longstanding left knee pain with locking in the knee in the past year and he had to wait until the knee unlocked to move again. The Veteran then proceeded with surgery. A March 2008 VA knee examination report noted the Veteran was employed full-time as a restaurant manager, with one week lost due to his left knee disability. Since his last rating in 2003 Veteran reported worsening of his knee disability. Subjective complaints included severe daily left knee pain, stiffness and swelling with throbbing pain, weakness, and decreased endurance. He was scheduled for surgery to remove lose bodies and repair torn cartilage. The Veteran reported taking medication without relief and used a cane. His knee pain severely affected completing chores and shopping; prevented exercise and sports; and moderately affected recreation, traveling, and bathing. Notably, his left knee was aggravated by his occupation as a fast-food manager due to the required prolonged periods of standing and walking. His left knee limited his ability to participate in reservist duties. An August 2009 private treatment record noted slight effusion in the left knee with no obvious deformity, and slight crepitus on flexion and extension. There was limited range of motion due to pain. The Veteran was ordered to avoid prolonged standing or sitting. See August 2009 Private Treatment Record. A March 2010 VA knee examination report noted the Veteran last worked in 2009 as a customer service representative and was not working mostly due to his left knee disability. He reported no running, he could walk a maximum of two miles, that it was difficulty to climb stairs, with no participation in sports. An antalgic gait on the left was noted, and functional impairment was at least moderately severe with incoordination due to limp on the left and some lack of endurance. An October 2010 VA physical therapy consultation noted knee extension and flexion was limited due to pain. The VA orthopedist told the Veteran he would need strengthening for six months and would eventually require knee replacement. The Veteran reported constant pain in left knee, which was aggravated by walking, standing, climbing stairs and relieved by elevation, relaxing, and not standing more than four hours or more or walking under one mile. A February 2012 VA knee examination report noted that the Veteran was in a post-operative state with his left leg in a full cast and would be expected to remain limited in physical and sedentary employment for an additional six months to one year following cast removal. The limitation from sedentary employment was based on current difficulty getting in and out of vehicles and ambulating to the place of employment with limited standing ability and need for frequent change in position while sitting. Following recovery, it was anticipated that the Veteran could return to full employment. Another VA knee examination was conducted in October 2012. The Veteran stated he needed to be careful with gait and balance and favored using the elevator. If he had to use the stairs, he held on to the side of the wall and was unable to climb more than one flight of stairs at a time. He would not use a ladder and was unable to walk more than two miles. After review of all evidence, and providing the Veteran the benefit of any reasonable doubt, the Board finds that the probative evidence supports this claim. In this regard, the Court in Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" to have two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). As to the economic component of a substantially gainful occupation, the Board finds that the Veteran has not been able to maintain gainful employment for the duration of the appeal period. The Board recognizes the Veteran reported holding positions of employment during the appeal period, including at a Subway sandwich, Discount Tire, night manager at a gas station, manager at McDonalds food, clerk for the Census Bureau, housekeeper, and volunteer work at a hospital. See September 2005 VA Knee Examination Report; December 2010 VA Treatment Record. However, each employment did not last long, some only weeks or months, and did not manifest in gainful employment. Moreover, the Veteran reported that he would leave employment due to his disabilities. See May 2008 VA Treatment Record; December 2010 VA Treatment Record; November 2011 Correspondence to VA. As such, the Board finds the Veteran had not been able to obtain or maintain gainful employment for the appeal period under consideration. As to the non-economic component, the Veteran's prior employment required him to be on his feet. He has consistently stated his issue with standing or walking. In addition, he reported weakness and lack of endurance in addition periods of his knee both locking up and giving way. Further, VA examiners had noted that the Veteran has an antalgic gait to the left. The March 2010 VA examiner noted functional impairment was at least moderately severe with incoordination with limp on the left and some lack of endurance. Moreover, the Veteran reported in the March 2008 VA knee examination that his left knee was aggravated by his occupation as a fast-food manager due to the required prolonged periods of standing and walking. From the Board's perspective, it would be unreasonable to conclude that the Veteran could effectively carry out duties like that of his prior employment given the severe mobility limitations presented by his left knee symptoms. Accordingly, based on the foregoing, the Board finds that a TDIU on an extraschedular basis, predicated on unemployability stemming from the Veteran's service-connected left knee disabilities, is warranted for the period on appeal to September 18, 2013. See 38 C.F.R. §§ 3.341, 4.16. Finally, 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, 69-70 (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). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.