Citation Nr: 21066185 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-63 585 DATE: October 28, 2021 ORDER A total disability rating based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDING OF FACT The preponderance of evidence weighs against a finding that the Veteran is unable to secure and follow substantially gainful employment because of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1973 to May 1977 and had subsequent service in the Army National Guard from April 1998 to April 2002 and from June 2002 to July 2006. This matter come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned at a Board hearing. A transcript of that hearing has been associated with the virtual file and reviewed. In January 2020, the Board denied the Veteran's claim for TDIU. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (CAVC). In December 2020, pursuant to a joint motion for remand (JMR) filed by the VA and the Veteran, CAVC vacated the Board's 2020 decision and remanded it to the Board for further action. In May 2021, the Board remanded to address the terms of the JMR, and it has now returned. The Board will now re-examine the issue. Entitlement to a TDIU The Veteran seeks a TDIU on an extraschedular basis. In the May 2021 remand, the Board referred the TDIU matter to the Director of Compensation Service for extraschedular consideration per 38 C.F.R. § 4.16(b). The Director, in June 2021, issued an advisory opinion that did not find entitlement to extraschedular TDIU warranted. 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. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). 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 they are 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). In this case, the Veteran does not meet the schedular criteria for a TDIU. The Veteran has the following disabilities that are service connected: left knee chondromalacia patella and degenerative joint disease, rated as 10 percent from June 2017; and right knee chondromalacia patella and degenerative joint disease, rated as 10 percent from June 2017. His combined rating is 20 percent, from June 16, 2017. See 38C.F.R. § 4.25. As such, he does not meet the schedular requirements for TDIU as outlined above per 38 C.F.R. § 4.16(a). Therefore, the Board will address the Veteran's entitlement to a TDIU on an extraschedular basis. The Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In June 2021, the Director determined that the Veteran was not entitled to TDIU on an extraschedular basis. As the Director has considered the issue in the first instance, the Board may now evaluate the claim on a de novo basis. Wages v. McDonald, 27 Vet. App. 233 (2015). In Wages, the United States Court of Appeals for Veteran's Claims (Court) held that a decision from the Director of Compensation Service "is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence.... It is simply a decision that is adopted by the [agency of original jurisdiction] and reviewed de novo by the Board." 27 Vet. App. 233, 239 (2015). With the referral to the Director and the Director's June 2021 advisory opinion, the Board finds that the due process aspect of 38 C.F.R. § 4.16(b) is satisfied. As the June 2021 advisory opinion is not evidence, the Board will not discuss it further. In this case, the weight of the evidence is against a finding that the Veteran is unemployable due to his service-connected bilateral knee disabilities. The Veteran contends that he is not employed due to both mental and physical disabilities. Specifically, in numerous VA 21-8940 forms he asserted that the disabilities that prevented him from securing and following and gainful employment are vision problems, muscle joint pain, schizophrenia, headaches, bad ankles, bad calf, and his bilateral knee disabilities. See 01/08/2017, 9/5/2017, 6/11/2018, 1/15/2019, and 3/17/2019 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. As noted above, the Veteran is currently only service connected for his bilateral knee disabilities. Under the applicable regulation, the impacts on employment from nonservice-connected disabilities is not relevant under this inquiry. See 38 C.F.R. § 4.16(a) ("Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.") (emphasis added). In statements from April 2010 and September 2010 he expressed that it was almost impossible for him to find a job due to a prior felony and, although he thought that may be a permanent situation, was still trying to find one. He also reported that his vision disability caused him to be substantially confined to his dwelling. At his November 2019 hearing, he indicated that he last worked in 1996 in security warehouses. He also reported he had bachelor's degree in psychology and history. Regarding his knee disabilities, he testified that he had pain when walking, including stairs, and he used a cane daily. Records obtained from the Social Security Administration (SSA) indicate that the Veteran became disabled in February 2013, due primarily to affective/mood disorders and secondary to substance addiction/dependence disorder of alcohol. It was noted that his inability to understand, remember, carry out more than simple instructions, sustain attention and concentration sufficient to carry out more than simple instructions precluded his utilization of any acquired work skills in other jobs. His job history indicated that he last worked part-time in 2009 as a handyman and in lawn maintenance. Prior jobs he held included janitor, laborer, laminator, light wheel vehicle mechanic, and security guard. The Veteran described his laborer positions as driving a truck and lawn maintenance such as trimming trees, cutting grass, and running errands. He indicated the jobs did not entail kneeling, climbing, crouching, or crawling. His mechanic jobs did not include kneeling, climbing, or crawling, but did include minimal crouching. In the SSA documents, he also reported that he was found guilty of a felony in 2008 and no one would hire him because of it. An accompanying October 2010 evaluation found him to have a normal gait with mild truncal ataxia. He could squat a full squatting posture and assume an erect position without difficulty. He ambulated with no assistive devices. He had no significant restriction in his ability to walk, stand, stoop, climb, or lift. A November 2017 VA examiner indicated that the Veteran was suited to light physical labor and that sedentary work would increase knee joint pain and stiffness. He was advised to avoid repetitive or heavy lifting, recurrent squatting/kneeling, prolonged walking/standing, and repetitive stair climbing. July 2018 and November 2018 VA examiners documented that he had trouble kneeling, crouching/squatting. He also had normal muscle strength. He described his left knee as having pain behind the kneecap and it sometimes felt like it wanted to pop. He described the right knee as hurting a "little bit." The Veteran reported that he did not receive treatment and took Tylenol as needed. VA treatment records document that the Veteran reported losing his driver's license but felt that he could work if he had help with transportation in January 2014. In March 2015, he indicated that he tried to do a lot of odd jobs to keep some money in his pocket. He denied a history of falling, using a walker or any other assistive device in September 2017. In August 2018 and August 2020, he was noted to ambulate independently with a steady gait. In July 2020, he reported that he enjoyed powerwalking as a recreational activity. The Board acknowledges that the Veteran has been unemployed for the appeal period and that he has had difficulties obtaining and securing substantially gainful employment. The weight of the evidence, however, is against a finding that the any unemployability experienced by the Veteran is due to his service-connected bilateral knee disabilities. In this regard, SSA records found the Veteran to be disabled primarily due to affective/mood disorders. The Board places persuasive weight on the findings made by SSA. These findings also are consistent with the information provided by the Veteran on the VA 21-8940 forms, as noted above. The Board also finds it highly significant, that by his own lay statements, he has also indicated that his vision and other non-service-connected muscle joint pains, and his felony conviction have played a large role in his unemployability. Indeed, in statements to both the Board and SSA, he reported that it was nearly impossible for him to find a job with a felony conviction on his record. However, the Board may not consider any disabilities other than the Veteran's service-connected disabilities during this period. The weight of the evidence tends to show that, while the Veteran's service-connected disabilities did have some adverse effect on his physical abilitiessuch as, repetitive heavy lifting, recurrent squatting/kneeling and prolonged walking and prolonged standingthe service-connected disabilities alone did not render him unemployable. Additionally, his service-connected disabilities do not limit his grasping, gripping, reaching over his head, or hearing over the phone. It is noted that while the Veteran has a college education, his past jobs entailed some form of physical work. However, as described by the Veteran, his past jobs did not require repetitive heavy lifting or recurrent squatting/kneeling. Additionally, while he indicated at his hearing that he used a cane daily, at other times, including at VA examinations and treatment appointments, he denied the use of assistive devices or reported only occasional use. A VA primary care encounter from August 2020 shows that that ambulation status was independent with steady gait. Notably, a VA treatment record from July 2020 reflects that the Veteran reported that he enjoyed power walking as a recreational activity. The evidence of record does not tend to demonstrate that the Veteran's service-connected knee disabilities are of such a severity or frequency that they prevent the Veteran from securing or following substantially gainful employment, consistent with his occupational history and educational attainment. The Board finds that the current 20 percent combined disability evaluation compensates the Veteran for the impact of their symptomatology. 38C.F.R. §4.1. In sum, the Board finds the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment. 38 U.S.C. § 5107(b). Therefore, entitlement to a TDIU on an extraschedular basis per 38 C.F.R. § 4.16(b) is not warranted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cruz, K. 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.