Citation Nr: 21065795 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-28 457A DATE: October 27, 2021 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from February 25, 2008 is granted. FINDING OF FACT The appellant's service connected disabilities at least as likely as not prevented him from obtaining or maintaining gainful employment from February 25, 2008, but not earlier. CONCLUSION OF LAW The criteria for entitlement to TDIU on an extraschedular basis are met from February 25, 2008, but not earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Army from June 1967 to June 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted entitlement to TDIU, effective from March 26, 2009. The effective date of the award of entitlement to TDIU was appealed in a notice of disagreement (NOD) received by VA in July 2017. A Statement of the Case (SOC) was issued by VA in April 2018. VA received the appellant's Substantive Appeal (Form 9) in June 2018, perfecting the appeal. The Board previously remanded this claim in January 2020 so that the RO could refer the appellant's claim for initial consideration of an extraschedular TDIU rating by the Director, Compensation Services. 38 C.F.R. § 4.16(b). A Supplemental Statement of the Case (SSOC) was issued by VA in December 2020. 1. Entitlement to an extraschedular total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from February 25, 2008 is granted. The appellant is currently assigned a total disability rating from March 26, 2009 based on his inability to obtain or maintain gainful employment due to his service-connected disabilities. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). An evaluation of the level of disability must include consideration of functional impairment of the ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure and follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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. 38 C.F.R. §§ 3.340, 4.16(a). Nevertheless, 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 disability shall be rated totally disabled. Thus, where the schedular threshold of 38 C.F.R. § 4.16(a) is not met, an extraschedular rating may be warranted under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability". Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19. The ultimate question is whether a veteran, in light of their service-connected disabilities, 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 (1993). As an initial matter, the Board notes that the appellant was initially denied entitlement to TDIU in a September 2000 rating decision. He appealed that decision in an October 2000 NOD. The denial of TDIU was confirmed in a February 2002 SOC; however, the appellant withdrew his appeal in his March 2002 Form 9. As such, that decision is final. He also had pending increased rating claims which were decided in a November 2005 unappealed Board decision. As such, any claims for TDIU which were inherently a part of those claims for an increased rating are also final. The appellant filed a formal claim for TDIU in October 2012. At the time, he had appeals pending based on claims for an increased rating for his service-connected disabilities. Previously, in July 2012, he had requested information on filing a claim for TDIU, noting that he received Social Security disability. The Board notes that this would likely be considered an intent to file a claim. In a July 2016 rating decision, the appellant was granted entitlement to TDIU from March 26, 2009, the first day that he met the schedular criteria for TDIU. Following the previous final adjudications of the appellant's claims in a November 2005 Board decision, which does not appear to have been appealed, the appellant filed a claim for an increased rating for his left knee disability, at the time rated 30 percent disabling, in a January 10, 2008 communication with VA. His total evaluation at that time was 40 percent, with a 30 percent rating for residuals of a left knee ACL repair and a 10 percent disabled for residuals of a left ankle sprain. Nothing that could be construed as a claim for benefits was received by VA between the final denial of his claims in the November 2005 Board decision and the January 10, 2008 claim for benefits. On January 10, 2008, VA received from the appellant a claim for an increased rating for his service-connected left knee disability. The appellant indicated a worsening of the condition, noting that it was causing increased fatigue and increased instability to the left knee, and that the condition necessitated that he wear a knee brace. An increased rating was ultimately not granted. The appellant is rated only 40 percent disabled from January 10, 2008, with a 30 percent rating assigned for residuals of a left knee ACL repair, and a 10 percent rating for residuals of a left ankle sprain. On February 25, 2008, VA received from the appellant a claim for service connection for type 2 diabetes mellitus, which was later granted. From February 25, 2008, the appellant has had a total disability rating of 60 percent. From that date, he is rated 30 percent disabled for residuals of a left knee ACL repair, 10 percent disabled for diabetes mellitus, type 2, 10 percent disabled for diabetic peripheral neuropathy of the left lower extremity, 10 percent disabled for diabetic peripheral neuropathy of the right lower extremity and a 10 percent disabled for residuals of a left ankle sprain. He also had a noncompensable rating for a nonpainful, linear scar on his left knee, which was a separately rated residual of his left knee disability. Claims for an increased rating may include a claim for TDIU if the issue is raised either directly by the claimant or based upon the facts found. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating). As the previous denial of TDIU was withdrawn while it was being appealed, that decision became final and as such, any award of an effective date for a grant of TDIU would have to flow from a new claim for benefits or a new claim for an increased rating. The appellant has already been granted TDIU from March 26, 2009. As such, the Board has considered whether an award for TDIU is warranted on an extraschedular basis either from January 10, 2008 or from February 25, 2008. Turning to the evidence of record, the Board notes that the appellant has not worked in substantially gainful employment since May 2000. He has indicated that he was let go from his long-term position as a bus driver in Hawaii due to safety concerns following his left knee surgery, although other evidence of record indicates that he took an early retirement for medical reasons after 25 years of service in the position. At the time, his treating VA doctor submitted a letter to his employer indicating that the appellant's service-connected left knee and ankle disability precluded any further employment as a bus driver. A VA examination from September 2000 found the appellant with full range of motion in the left knee, and indicated that he did not require a knee brace, did not require a cane or other assistive device to ambulate, and that he was not able to do repetitive squatting or kneeling activities. The examiner noted the appellant would not be able to use a "hard clutch" such as would be necessary to drive a large bus or other commercial vehicle with manual transmission. The examiner noted that the appellant would intermittently have aching pain after standing or walking more than an hour at a time. The examiner found there was full range of motion in the left ankle without any neurological or mechanical deficits and that there were no restrictions on the appellant's activities due to that joint. An October 2000 private examination noted less range of motion in both the left knee and left ankle which the examiner estimated to be about 15 percent loss of full range of motion. Range of motion in the left knee was 118 degrees flexion and 0 degrees extension in active range of motion, and 132 degrees flexion and 0 degrees extension in passive range of motion. Active range of motion in the left ankle was 18 degrees in dorsiflexion and 40 degrees in plantar flexion, with increased range of motion in passive range of motion. The examiner noted no pain, fatigue, weakness, or lack of endurance in either joint. The appellant had no instability in either joint, and was noted with a normal gait. The examiner did not offer an opinion on residual functional capacity or whether these disabilities alone prevented the appellant from obtaining or maintaining any substantially gainful employment or from performing any of the necessary tasks required of substantially gainful employment. At a February 2008 VA examination, the appellant was noted with flexion of the left knee to 130 degrees with pain only during the last 5 or 10 degrees of motion. The appellant was noted with full extension to 0 degrees. Joints were intact, although Lachman testing was positive suggesting an ACL tear. McMurray test was positive for meniscal impairment. The appellant reported daily severe flare-ups of pain with prolonged standing, walking, pivoting, climbing stairs. He reported difficulty running beyond a slow pace. He reported this condition alone had a moderate impact on his everyday life, and that it prevented him from working in his previous profession as a bus driver. Later diagnostic testing confirmed a current meniscal tear and ACL tear. The appellant's records do not indicate that either of these conditions were surgically repaired during the period now on appeal, which would require a grant of a temporary total rating for convalescence. At a March 2008 VA examination, the appellant was noted to have met the diagnostic threshold for a diagnosis of type 2 diabetes. His diabetes was noted to be controllable through diet and exercise at that point, and did not require continuous medication. He was noted with cataracts, angina, peripheral neuropathy of the lower extremity, and kidney disease as additional manifestations. He noted at that examination that he had retired in May 2000 due to being eligible by age or duration of work. During this examination, it was particularly noted that the appellant had increasingly worse symptoms of peripheral neuropathy in the recent past. Diagnostic testing showed decreased reflexes in the lower extremities. These symptoms were noted to cause severe impairment to the appellant's ability do recreation, sports, or exercise, and have a moderate impact on his ability to do chores, travelling, and shopping. An April 2009 VA examination showed an increase in the appellant's diabetes symptoms over the previous year, requiring that he begin taking continuous oral medication to control symptoms. A VA examination from December 2012 indicated that the appellant's service-connected disabilities as of that time prevented him from being able to secure or maintain substantially gainful employment due to the impact on running, walking, standing, balance, stooping, and squatting. The appellant's October 2012 formal application for TDIU indicates that he completed a high school course of study and had 1 year of college education. He stated that he had last worked full time in July 2000 as a bus driver, retiring due to his service-connected left knee and ankle disabilities. He indicated he had applied for work as an "unskilled laborer" after moving to Las Vegas in 2000 but that he had been unable to find work. Beginning with a possible effective date of January 10, 2008, the Board notes that at that time, the appellant was only service connected for a left knee disability and a left ankle disability. As such, for purposes of determining whether this would be an appropriate date for a grant of entitlement to TDIU, the Board may not consider any of the appellant's other disabilities which were later granted service connection. Consideration is limited only to the functional impact of his left knee and his left ankle disabilities. At the time he filed his claim and was examined, he did not report any increase in symptoms related to his left ankle disability; however, he reported significant increase in symptoms in his left knee disability. Later diagnostic testing indicated that the appellant did in fact have a current tear in both his ACL and meniscus at or around the time he filed his claims for an increased rating. He reported some symptoms in his left knee which worsened in intensity with significant use. Considering the evidence of record, and limiting consideration only to the effects of the appellant's left knee and ankle disabilities for the period from January 10, 2008, the Board finds that the appellant's left knee and ankle disabilities did not alone prevent him from obtaining or maintaining gainful employment. While they do appear to have significantly impacted his ability to perform certain tasks involving physical activity, and certainly precluded his previous line of employment as a bus driver, as opined by his treating VA physician in 2000, there is no indication that they prevented him from engaging in other forms of employment that required less physical exertion or activity. This is supported by the VA examinations, which noted the appellant's left knee and ankle caused functional limitation, but also noted these impacts were limited to instances requiring prolonged walking, standing, and other activities, and that the knee and ankle disabilities in no way impacted his ability to do types of work requiring less physical activity such as driving positions that did not require using the left leg for working a clutch in a manual transmission. In reaching this decision, the Board notes that the appellant did re-locate after he retired as a bus driver in 2000, moving from Hawaii to one of the largest metropolitan areas in the country, Las Vegas. The appellant does not appear to have made any attempts to obtain any other types of employment which would not have required him to operate a hard clutch or perform other similar employment activities. Even within the appellant's long-time profession of commercial driving, there is no indication he sought other professional opportunities which would not have required the type of extra work necessary for working a manual transmission in a large commercial vehicle, requiring the use of the left lower extremity. From February 25, 2008 though, the Board finds the appellant has been unable to obtain or maintain gainful employment due to his service-connected disabilities, which after this date include his service-connected type 2 diabetes and associated manifestations. From that date, the Board may consider the impacts of the appellant's service-connected type 2 diabetes mellitus and its associated manifestations, which from that time had begun to affect the appellant's sensation in the lower extremities, his genitourinary and cardiovascular systems, and his eyesight. When combined with the effects of the appellant's service-connected left knee and ankle disabilities, the Board finds the appellant was unable at that time to obtain or maintain gainful employment. The additional functional limitations created by the appellant's type 2 diabetes symptoms certainly added additional obstacles to his ability to perform the tasks necessary for employment. Peripheral neuropathy in his lower extremities further impacted his mobility, along with his reflexes. Genitourinary and cardiovascular issues impacted his fatigability and overall wellness, with his diabetes worsening quickly after being diagnosed around the time he applied for service connection. In regards to the appellant's long-time employment as a professional driver, the Board notes that a loss of sensation and reflexes in the right lower extremity, which is only service-connected and considered from February 25, 2008, would directly impact his ability to do any sort of commercial driving. Considering all this, the Board finds that the evidence at least as likely as not shows that the appellant was unable to obtain or maintain gainful employment due to his service-connected disabilities from February 25, 2008. As such, granting the appellant the benefit of the doubt, the Board concludes that a grant of entitlement to TDIU, on an extraschedular basis, is warranted for the period from February 25, 2008. 38 C.F.R. §§ 4.3, 4.16. Additionally, the Bard also finds that the preponderance of the evidence is against finding that the appellant was unable to obtain or maintain gainful employment at the time he filed his claim for an increased rating for his left knee disability on January 10, 2008. In making this finding, the Board for that period from January 10, 2008 and February 25, 2008 has only considered the functional impact of the appellant's service-connected left ankle and left knee disabilities, which were the only service-connected disabilities during that period. As explained above, the Board has found that the preponderance of the evidence is against finding these orthopedic disabilities alone rendered the appellant incapable of performing the physical and mental acts required by employment, despite the appellant's assertions that he was unable to find employment. While these disabilities alone likely prevented the appellant from continuing his previous employment as a bus driver, and likely other forms of employment requiring significant physical exertion, the results of VA examinations and the appellant's own reports do not indicate that they prevented him from obtaining any and all substantially gainful employment, particularly types of employment requiring less physically demanding tasks such as in an administrative or retail environment. As such, the Board concludes that criteria for entitlement to TDIU, on an extraschedular basis, prior to February 25, 2008, are not met. 38 C.F.R. § 4.16. As the preponderance of the evidence is against such a finding, the benefit of the doubt rule is inapplicable. 38 C.F.R. § 4.3. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.