Citation Nr: 21066934 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 10-02 532 DATE: November 2, 2021 ORDER Entitlement to a total disability rating due to individual unemployability based upon service-connected disorders (TDIU) effective February 2, 2009, but no earlier, is granted. FINDING OF FACT The evidence of record supports a finding that the Veteran's service-connected disorders alone have rendered him unable to secure or follow substantially gainful employment since February 2, 2009, which is the date that the Veteran's claim for a TDIU was received. CONCLUSION OF LAW The criteria for entitlement to a TDIU, effective February 2, 2009, but no earlier have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1979 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This case has a long procedural history. The Veteran's claim was initially received as a claim for an increased rating for his right knee. See VA Form 21-4138 (rec'd Feb. 2, 2009); see also VA Memo (rec'd Mar. 30, 2007 ) (confirming that previous actions satisfied the Veteran's previous appeal). The Board accordingly concludes that it does not have jurisdiction over the propriety of any rating prior to February 2, 2009. During the pendency of this appeal, the Veteran has been service-connected for tinnitus, and has also undergone bilateral service-connected knee replacements. The Board inferred a claim for TDIU out of this claim for increased ratings, see Rice v. Shinseki, 22 Vet. App. 447 (2009). A previous Board decision issued May 19, 2017 was later vacated upon the grant of a Joint Motion for Remand (JMR) by the United States Court of Appeals for Veterans Claims (CAVC or Court) dated December 15, 2017. The matters returned to the Board on July 30, 2018. As of this decision, the Veteran's claims for increased rating for his bilateral knees are final; however, the Board remanded the Veteran's claim for a TDIU one more time. On October 31, 2018, the Agency of Original Jurisdiction (AOJ) granted the Veteran's claim for a TDIU effective August 20, 2012, which coincides with both the Veteran's service connection award for his left knee status post-replacement and his first satisfaction of schedular eligibility under 38 C.F.R. § 4.16(a). The October 2018 rating decision explicitly added that his remaining claim for extraschedular TDIU prior to August 20, 2012 was still being developed. The Board notes that in October 2018, the Veteran's claim for extraschedular consideration was properly referred to the Director of Compensation Service; therefore, under 38 C.F.R. § 4.16(b), jurisdiction is now proper before the Board, as evidence by the fact that the Board would not be adjudicating entitlement to TDIU on an extraschedular basis in the first instance. The Veteran was issued a Supplemental Statement of the Case (SSOC) on December 3, 2018. Subject to the above procedural history, the Board asserts jurisdiction over the Veteran's remaining claim: one for a TDIU prior to August 20, 2012, as was received on February 2, 2009. The Board grants this claim in full. If the Veteran has not been afforded substantial compliance with any previous remand directive, see Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board interprets this decision as a full grant of the appeal sought, and so concludes that the Veteran cannot be prejudiced by a full grant. In April 2021, the Veteran's attorney requested a 90 day extension of time to submit additional evidence and argument. The Board granted this Motion for Extension of Time in an April 2021 letter. In July 2021, the Veteran's attorney requested a second 90 day extension of time to submit additional evidence and argument. This requested time period has now expired. Entitlement to a TDIU effective February 2, 2009, but no earlier, is granted. The Veteran contends that his service connected right knee condition rendered him unemployable since February 2, 2009. The Board notes that the Veteran was awarded a TDIU in an October 2018 rating decision due to his right knee condition, effective August 20, 2012. The Veteran's claim for a TDIU for the appeal period prior to August 20, 2012 was referred to the Director of Compensation Service in October 2018 and considered by the Director Compensation Service in November 2018. As a result, the Board has jurisdiction to award TDIU after referral for extraschedular consideration. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). It is the established policy of the Department of Veterans Affairs 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. Id. at § 4.16(b). The Veteran contends that service-connected right knee condition by itself rendered him unemployable. The Veteran's chronic synovitis with degenerative joint disease and limited extension, status post right knee surgery was rated as 20 percent disabling prior to April 24, 2013; right knee condition with meniscus injury, rated as 20 percent disabling and right knee disability with limitation of flexion, rated as 10 percent disabling. His combined rating was 40 percent for the appeal period prior to August 20, 2012. Even though the Veteran did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) until August 20, 2012, the Veteran is eligible for a TDIU on an extraschedular basis, on the basis of his right knee disorder by itself, after referral to the Director of Compensation Services. If a veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration 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); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). It follows that the Board now has jurisdiction to adjudicate the issue on its merits, as the Director has already made its required initial determination. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-7 (1996). The key question at issue is whether the Veteran's service-connected right knee disorder, in and of itself, has rendered the Veteran unable to secure for follow gainful employment during the period under review, i.e.: from February 2, 2009 to August 20, 2012. In consideration of the pertinent medical findings, including his reports at the various VA examinations of record and during treatment at VA medical centers, where he indicated his barriers to employment included severe right knee pain, limited range of motion and sitting intolerance which would prevent him from sitting and working for more than fifteen to twenty minutes a time without needing to take an extended break, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service connected right knee disorder for the appeal period from February 2, 2009 to August 20, 2012. In a July 2018 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that he had a 12th grade education and that his past employment history included working in security, customer service and as a greeter. A May 2018 vocational opinion from A.L. noted that the Veteran worked numerous jobs in periods of a couple week or months at time, that he was not able to sustain substantially gainful employment, that he attempted to apply for sedentary work in positions such as sales but was not successful and that he found that he did not have the education, computer or writing skills to qualify for sedentary work. With regards to functional impairments, a March 2009 VA examination report noted that the Veteran had undergone steroid injections with limitation benefits, that he attempted to use a cane and that he used a brace periodically. Limitations were noted to include pain on certain movements, climbing stairs, prolonged walking, prolonged weight bearing, prolonged sitting and due to changes in weather. A May 2010 VA examination noted that knee pain was worse and that he experienced weakness, stiffness, lack of endurance, effusion, swelling, heat, redness, tenderness and knee locking. His ability to climb the stairs was noted to be further limited by pain, weakness, fatigue and decreased speed during flare-ups and that the knee condition limited his ability to perform his usual occupations in that it would limit walking, bending, lifting, carrying and stair climbing. A May 2018 vocational opinion from A.L. found that the Veteran's limitations preclude employment regardless of the physical demand level of the occupation, and that he would be unable to maintain a 40 hour workweek due to his right knee condition. The vocational expert found that the Veteran would likely be absent from work in excess of three times per month due to his symptoms, which would not be tolerated by any employer. The vocational expert further found that the Veteran could not perform day-to-day tasks nor would be able to maintain adequate pace or production on the job and that he did not have the education or training required of most sedentary work. To the extent that the Veteran was able to briefly work in customer service or another position, there is no evidence that such was gainful employment. Therefore, based on the foregoing, the Board finds that the Veteran's service-connected right knee disorder does render him unable to secure and follow a substantially gainful occupation and entitlement to a TDIU is warranted for the appeal period from February 2, 2009 to August 20, 2012. To that extent, the appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED