Citation Nr: 21067290 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 13-26 223 DATE: November 3, 2021 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) before February 25, 2011, is denied. Entitlement to an extraschedular TDIU on and after February 25, 2011, is granted. FINDINGS OF FACT 1. From January 2003 to February 25, 2011, the Veteran worked full-time as an auto body repair shop manager. 2. Resolving reasonable doubt in the Veteran's favor, the Veteran has been unable to obtain or maintain a substantially gainful occupation due to his service-connected knee disabilities on and after the February 25, 2011. 3. In a June 2021 Board decision, the Veteran was granted a schedular TDIU from August 21, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to an extraschedular TDIU before February 25, 2011, are not met. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.19. 2. The criteria for entitlement to an extraschedular TDIU from February 25, 2011, to August 21, 2021, are met. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to December 1967. This matter comes to the Board of Veterans' Appeals (Board) from a December 2010 rating decision issued by the Agency of Original Jurisdiction (AOJ). In June 2021, the Board granted a schedular TDIU from August 21, 2012, and remanded the appeal for a referral to the Director of Compensation Services (Director) for consideration of an extraschedular TDIU. Based on the Director's September 2021 decision denying an extraschedular TDIU, the AOJ declined to assign a TDIU. 1. Entitlement to an extraschedular TDIU before February 25, 2011, and the assignment of an extraschedular TDIU on and after that date. The Veteran contends his service connected knee disabilities rendered him unable to work and, therefore, he is entitled to a TDIU. See February 2011 Statement at 1; February 2011 Notice of Disagreement (NOD). Because the Veteran has already been granted a schedular TDIU from August 21, 2012, the question for the Board is whether he has established entitlement to an extraschedular TDIU for the portion of the appeal period before that date. The Board concludes the Veteran did not qualify for an extraschedular TDIU before February 25, 2011. However, the evidence supports the assignment of an extraschedular TDIU on and after February 25, 2011. Considering the Veteran has been assigned a TDIU from August 21, 2012, the discussion below is limited to the evidence relating to the appeal period from August 2010 to August 21, 2012. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38C.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 (1993). In arriving at a conclusion, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38C.F.R. §§3.341, 4.16, 4.19. The phrase "unable to secure and follow a substantially gainful occupation" has two components: First, an economic component which essentially contemplates 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. Ray v. Wilkie, 31 Vet. App. 58, 71-74 (2019). Second, there is a non-economic component dealing with the Veteran's ability to secure and follow employment. For this second component, attention must be given to: (a) the Veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Id. As sedentary work is defined as "doing or requiring much sitting," the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003). In order to be granted a TDIU, the Veteran must have a single disability rated at 60 percent or more. If the Veteran does not, he or she can be granted a TDIU for multiple disabilities rated together at 70 percent or more with at least one of the disabilities rated at 40 percent or more. 38 C.F.R. § 4.16 (a). An extraschedular TDIU may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable by reason of one or more service-connected disabilities. 38 C.F.R. § 4.16(b). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment." Id. The Board does not have jurisdiction to award an extraschedular TDIU in the first instance. Rather, it must refer the claim to the Director of Compensation Service (the Director) for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board has jurisdiction to decide an extraschedular TDIU claim if, and only if, the Director determines that an extraschedular evaluation is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 426 (2009). If the Director denies the assignment of an extraschedular TDIU, the case then returns to the Board for review of the Director's decision. Id. at 427. At that point, the Board is free to decide whether the assignment of an extraschedular TDIU is warranted. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Reasonable doubt exists when there is an approximate balance of positive and negative evidence for and against the claim. 38 C.F.R.§ 3.102. Beginning with the Veteran's last employment, he worked as an auto body repair shop manager, from January 2003 to February 25, 2011. It was a full-time job that included nine hour workdays with little time seated at a desk. Most of his workday involved inspecting vehicles to calculate estimates. He also assisted in making repairs, and, at times, performed the repairs himself. Those activities included walking, stooping (bending over), kneeling, and crawling. About one hour of his day was spent performing administrative tasks while seated at a desk. See May 2011, Social Security Administration (SSA) Work History Report at 2, 3. He earned an annual income of $66,553 before he stopped working, on February 25, 2011. See May 2011 VA Form 21-492, Request for Employment Information. The Board notes that on February 25, 2011, the Veteran did not have a single disability rated 60 percent or more, nor multiple service connected disabilities with a combined disability rating of 70 percent or more. At the beginning of the appeal period (August 2010) he reported to VA medical providers his service-connected right knee and (now service-connected) left knee disabilities interfered with his ability to work. See August 2010 VA Medical Center (VAMC) Record by Z.H., PA (noting the Veteran reported he is experiencing more and more difficulty with prolonged standing, walking). Then, in September 2010, he a VA disability examination to evaluate the severity of his knee disabilities. At that time, he observed knee pain brought on after standing for 15 minutes or sitting for an hour. If he spent a lot of time squatting or bending over, he would observe flare-ups lasting up to a week. His symptoms required he spend part of his workday sitting with his leg elevated. Also, his symptoms interfered with his job to the extent some of his duties were reassigned. The examiner found limited movement with pain that caused significant effects on his ability to work. See Compensation and Pension (C&P) Examination Report at 1, 4, 5.The Board notes the examiner conducted range of motion testing that the Veteran reported was obtained by pushing his knee beyond the point he observed pain. See February 27, 2011, Statement. In November 2010, he reported to a VA medical provider that he decided to retire in February 2011. See November 23, 2010, Record by H.Z., PA. He retired on February 25, 2011. He visited a VAMC the same day and reported he retired because his knee disabilities prevented him from performing his job. See February 25, 2011, Record by M.D. He also provided a February 27, 2011, statement that asserted his service-connected knee disabilities rendered him unable to work; so, he quit. See Statement at 1. His statements indicates that, by the time he retired, he observed pain, instability, difficulties extending his knees, and difficulties putting weight on his legs. With regards to instability at the right knee, he reported he used a cane whenever he walks. See Statement at 3. As to extension at both knees, he could not lie on his back with his legs fully extended, which interfered with his ability to sleep. He added he could not sit in a tub with his legs extended. Id. at 2. With regards to knee pain, he observed pain when he put pressure on his knees, to include standing and walking. Based on his own testing, he could not stand longer than 15 minutes before he had to sit down. He could not sit longer than 20 minutes without observing difficulties standing up. When he got up, his observed pain was so severe he had to wait before he could start walking. Id. at 1, 3. Another VA disability examination was conducted on March 3, 2011 (the month after the Veteran stopped working). The examination was focused on assessing the severity of the Veteran's left knee disability. The Veteran reported he observed pain, tenderness, decreased speed of motion at the left knee. He added that he frequently used a cane and could stand for 15-30 minutes. See March 2011 C&P Examination Report at 2, 5. The examiner found pain and limited movement at the left knee. Initial range of motion testing for flexion was 0 to 90 degrees; for extension, 90 to 20 degrees. The examiner found greater loss of motion on repetitive use testing with flexion 0 to 80 degrees; for extension 80 to 20. Id. at 4. The Veteran had not reported flare-ups; so, an opinion as to additional loss of motion due to flare-ups was not provided. Id. at 2, 5. The examiner noted the diagnosis of left knee degenerative joint disease (DJD) that caused moderate effects on performing chores, traveling, shopping. Id. at 5, 6. The Veteran underwent another VA examination in April 2011, which was focused on the right knee. He reported he observed right knee pain when standing longer than 15 minutes. Also, when he took more than four steps. He observed stiffness, instability, weakness, and flare-ups that occur several times a week. He added he used a cane intermittently. See C&P Examination Report at 1, 2, 3. The examiner found pain and limited movement at the right knee. Initial range of motion testing for flexion was 0 to 120 degrees; for extension, 120 to 0 degrees (normal extension). The examiner found greater loss of motion on repetitive use testing with flexion, which was 0 to 110 degrees. Id. at 4. The following month, in May 2011, the SSA evaluated the Veteran for disability benefits. He reported to the SSA that he observed pain at his knees; he described its severity as a 9 out of 10 (with 10 being most severe pain). He added the pain limited him to no more than 20 minutes standing and walking. Also, he could not sit longer than 30 minutes. See May 2011 SSA Supplemental Pain Questionnaire at 1, 3. Due to his observed symptoms, he frequently wore a brace, used a cane, and used an electric shopping cart. See May 2011 SSA Report of Contact. He also reported he retired due to chronic bilateral knee pain. See May 2011, SSA Residual Functional Capacity Assessment at 2. The SSA gathered data on the Veteran's work and noted his occupation requires at least two to three hours of standing/walking each day, which SSA determined the Veteran was no longer capable of performing. See SSA Initial Decision Worksheet at 2. The SSA favorably found the Veteran disabled. In coming to that decision, it does not appear the SSA conducted its own examination of the Veteran; instead, the SSA adjudicator referenced medical findings identical to the ones in the March and April 2011 VA DBQs. For example, the range of motion measurement for the Veteran's left knee were identical to the range of motion measurements found in the March 2011 C&P Examination Report. The following year, on August 21, 2012, the Veteran underwent another VA disability examination. The examination evaluated both knees. The Veteran reported he could walk up to 40 yards before having to stop and rest. He added he constantly used a cane, regularly uses a motorized scooter, and occasionally used crutches. He reported flare-ups of increased pain that occur every two weeks. He demonstrated to the examiner that he could not fully squat. See VA DBQ at 1, 6, 7. The examiner found pain and limited movement at both knees. Initial range of motion testing on the left knee for flexion was 0 to 95 degrees; for extension, 95 to 10 degrees. The examiner found greater loss of motion on repetitive use testing at flexion, which was 0 to 85 degrees. With regards to the right knee, initial range of motion testing for flexion was 0 to 90 degrees; for extension, it was 90 to 10 degrees. The examiner noted the Veteran had greater loss of motion following repetitive use testing, with flexion at 0 to 85 degrees; for extension, 85 to 20 degrees. Id. at 2, 3. The Board notes from August 21, 2012, the Veteran met the schedular criteria for a TDIU based on a single disability rated 60 percent disabling or more. The single disability was based on three left, right knee disabilities: right knee internal derangement (rated 20 percent disabling under DC 5257 from December 1972); left knee DJD associated with internal derangement right knee (rated 30 percent disabling under DC 5261 from February 10, 2011); and right knee limitation of extension (rated 10 percent disabling under DC 5261 from August 21, 2012). Following a June 2021 Board remand, the AOJ obtained a September 2021 decision by the Director denying the Veteran's claim for an extraschedular TDIU. The Director acknowledged the Veteran's lay observations but decided there is not enough medical evidence in the record before August 21, 2012, showing unemployability to support the assignment of an extraschedular TDIU. See Decision by Director Compensation Service at 2. A. The appeal period for the Veteran's TDIU claim is from August 31, 2010. The record reflects the issue of unemployability due to service connected knee disabilities was raised by the record while an increased rating claim for the right knee was pending. So, the appeal period for this TDIU claim is the same as the appeal period for the Veteran's right knee claim. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (holding that a claim for TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record). Because the appeal period for his right knee claim is from August 31, 2010, it is also the appeal period for the Veteran's extraschedular TDIU claim. B. Entitlement to an extraschedular TDIU from August 31, 2010, to February 25, 2011. Even if the Veteran had met the criteria for a schedular TDIU (which he does not), the ultimate question remains the same; that is, whether the Veteran's service-connected disabilities prevented him from obtaining or maintaining a substantially gainful occupation. 38 C.F.R. § 4.16. In this case, the Veteran did not meet the criteria for a TDIU through February 25, 2011. The record shows he was service connected for two disabilities during that part of the appeal period: first, right knee derangement (20 percent disabling, from December 1972); second, left knee DJD (30 percent disabling from February 10, 2011). Because their combined rating (50 percent) is less than the required 70 percent rating for a TDIU based on a single disability, entitlement to a schedular TDIU based on the effects of his service connected knee disabilities is not warranted. Even if the Veteran had met the schedular requirements for a TDIU, the evidence does not support finding he qualified for a schedular or extraschedular TDIU during the relevant period because his income exceeded the poverty threshold levels for the period from August 2010 to February 25, 2011. 38 C.F.R. § 4.16(b). For the year 2010, the Veteran maintained full-time employment and earned an annual income of $66,553. There is no indication his salary was reduced through February 25, 2011. See May 2011 VA Form 21-492, Request for Employment Information. Based on his income, he was not qualified for a TDIU during those periods because his income was above the poverty threshold levels established by the U.S. Census Bureau. 38 C.F.R. § 4.16.(a). His income for 2010 ($66,553) was above the poverty level for that year, which was $11,344. See U.S. Department of Commerce, Census Bureau, Poverty Thresholds, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed October 27, 2021). The Board notes the record does not raise the inference that he worked in a protected environment. Although the Board does not have an annual income for 2011, he maintained full-time employment through February 25, 2011, which shows his service connected knee disabilities did not preclude him for securing and maintaining substantial gainful occupation during that period of time. See Statements dated February 27, 2011, and March 2011. In sum, the evidence weighs against finding his service-connected knee disabilities precluded him from securing and maintaining a substantially gainful occupation before February 25, 2011 (when he stopped working). The Veteran was employed throughout the relevant period, with income that was above the poverty threshold levels. Accordingly, entitlement to an extraschedular TDIU before February 25, 2011, is not warranted 38 C.F.R. § 4.16; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). C. Entitlement to an extraschedular TDIU from February 25, 2011, to August 21, 2012. Although the Veteran's disability ratings (50 percent) had not changed on February 25, 2011, the Board concludes the evidence supports finding his service-connected knee disabilities rendered him unemployable from that date. The record shows he had complained of increasing difficulties performing his job from the beginning of the appeal period through February 25, 2011. The Veteran is competent to report whether his knees made it more and more difficult to perform the physical tasks involved in managing an auto body repair shop, like bending, squatting, and crawling to inspect and repair vehicles. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Given that the September 2010, March and April 2011, VA medical examinations support his assertions, the Board finds his claim that his knee disabilities worsened to the point he was no longer able perform the physical activities required by his job, credible. See September 2010 VA DBQ at 1, 5 (noting significant effects on occupational functioning, with decreased mobility and having to sit in office with elevated leg); March 2011 VA DBQs at 3 (noting the Veteran is limited to standing 15 to 30 minutes); April 2011 VA DBQ at 3 (noting Veteran is limited to standing 15 to 30 minute and walking 100 yards). Given that the Veteran's service-connected knee disabilities interfered with his ability to bend, kneel, crawl, walk, and stand, there is probative evidence in the record that supports finding he could no longer maintain a substantially gainful occupation. The SSA's award of disability benefits supports that finding. The SSA found the Veteran's knee disabilities rendered him unable to perform the past relevant work as an autobody repairer or repairer supervisor because those jobs require standing/walking two to three hours each day. See SSA Initial Decision Worksheet at 2. While SSA disability determinations are not binding on the Board, the SSA's assessment of the Veteran's skills and their transferability to other occupations within his physical abilities relevant to the Board's decision to assign an extraschedular TDIU. Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Considering SSA has favorably found the Veteran no longer has the ability to work as an auto body repair shop manager, it provides evidence that supports his TDIU claim. See SSA Initial Decision Worksheet at 1. The Board recognizes the Veteran's difficulties performing physical activities does not address whether he could perform sedentary employment; however, a search of the record shows he had difficulties performing sedentary work as well. The issue of sedentary employment may arise when a Veteran is physically disabled and medical evidence demonstrates he might be capable of sitting at a desk for work. Here, the record shows the Veteran gradually lost the ability to sit for more than an hour. Early in the appeal period, he reported he could not drive longer than an hour without having to get up and stretch his legs, which indicates to the Board he had problems sitting for an hour. See September 2010 VA DBQ at 6. By the time he stopped working, he could not sit more than 20 minutes. See February 27, 2011, Statement at 1. Taken together, the Veteran has provided probative evidence that suggests he gradually lost the ability to perform office-type work by the time he stopped working (February 25, 2011). The Board recognizes the SSA determined the Veteran could sit for six hours in an eight-hour workday, which conflicts with the Veteran's assertions; however, the Board resolved doubt in his favor. First, the medical data noted in SSA's disability determination is identical to the findings found in the March and April 2011 VA DBQs. Second, those DBQs do not acknowledge the Veteran's lay reports of difficulty sitting. See September 2010 VA DBQ at 6; February 27, 2011, Statement at 1. Because the data the SSA relied on does not appear to adequately portray the Veteran's limited ability to sit, the SSA's determination he could do so for six hours was assigned little weight. When weighed against the Veteran's credible lay observations, the Board found the evidence regarding the Veteran's ability to perform sedentary employment approximately balanced; therefore, doubt was resolved in the Veteran's favor. 38 C.F.R. § 4.3 The Board also recognizes the Director decided the assignment of an extraschedular TDIU is not warranted, but it decided the matter based on lack of medical evidence showing unemployability. A TDIU is not purely a medical question and the responsibility for the ultimate TDIU determination is on the VA, not medical professionals. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As indicated above, the Board finds there is a sufficient combination of lay and medical evidence showing his service-connected knee disabilities increased to a point he could no longer stand, walk, and sit long enough to maintain substantially gainful employment. Even though the Veteran retained the mental capacity to perform some job functions, he does not have to prove that he is 100 percent unemployable to establish an inability to maintain a substantially gainful occupation to be awarded a TDIU. 38 C.F.R. § 3.340 (a); Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In this case, the Board finds the evidence is at least approximately balanced in favor of finding his service-connected knee disabilities rendered him unable to obtain or maintain a substantially gainful occupation. There is sufficient lay and medical evidence suggesting he stopped working due to his service-connected knee disabilities to resolve doubt in his favor. Accordingly, the assignment of an extraschedular TDIU, from February 25, 2011 (the date the Veteran last worked) is granted. 38 C.F.R. §§ 4.3, 4.16(b). The Board notes the assignment of an extraschedular TDIU does not have an effect on his currently assigned schedular TDIU, which is from August 21, 2012. The extraschedular TDIU will run from February 25, 2011, to August 21, 2012. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.