Citation Nr: 21067578 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 03-31 034 DATE: November 4, 2021 ORDER Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran has not met the schedular criteria for a TDIU based on his service-connected disabilities at any time during the appeal period, but the Board resolves reasonable doubt in his favor by finding that he was unable to obtain or maintain gainful employment due to his service-connected conditions during the period in question. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1966 to March 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's appeal has a complex procedural history and included multiple issues as well as prior Board actions; however, these issues have been addressed and the only claim that remains on appeal is the claim for entitlement to a TDIU. The Board previously determined in a July 2017 decision that the issue of entitlement to a TDIU had been raised by the record, and was part of the appeal, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the claim at that time and again in October 2018 and July 2020. The Veteran provided testimony on the TDIU claim in December 2020 before the undersigned Veterans Law Judge and a transcript is of record. A November 2019 transcript also contains some discussion before the undersigned of the impact the Veteran's left knee disability had on his ability to work. The claim was most recently remanded in May 2021. 1. Entitlement to a TDIU due to service-connected disabilities VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with her education and occupational experience by reason of her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. 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). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. 38 C.F.R. § 4.16(a). As noted above, the Veteran's claim for entitlement to a TDIU was found to be part of an increased rating claim that was before the Board in July 2017. The claim for increased rating was received in July 2011. The Board found that the issue of entitlement to a TDIU had been raised in an October 2016 medical statement, which indicated that the Veteran could not work in part due to his right knee disability. In his February 2019 VA Form 21-8940, the Veteran reported that he was last employed in 1998 as a self-employed carpenter; that he does not have a high school degree; and that his employment history consists solely of self-employment as a carpenter. He listed "both knees and back (pending)" as the service-connected disabilities that prevent him from securing or following any substantially gainful occupation and that he became too disabled to work in May 2007, though his disability affected full time employment in 1968. He elaborated that after leaving the Army in 1968, he tried to work at several jobs, but he was unable to keep jobs because of his knees and back. His only choice to try to earn a living for his family was to become self-employed, which allowed him to control his work schedule and workload. The Veteran reported that his disabilities continued to get worse over the years; that he could not stand or walk without assistance of a cane and walker; and that if any distance is required he uses a scooter prescribed and furnished by VA. The Veteran testified in November 2019 about how his left knee disability impacts his ability to work and in December 2020 about how his service-connected disabilities impact his ability to work. On both occasions, he indicated that he had to go into business for himself so that he could control his work environment, to include working hours, based on how his health allowed him to work. He testified that he had last worked in 2005 or 2006 as a carpenter and that had he been working between 2009 and 2014, he would have worked 25 to 30-hour weeks each year and missed half the year. The Veteran is service connected for a thoracolumbar spine disability (rated 20 percent disabling from October 28, 2009); right lower extremity radiculopathy (rated 10 percent disabling from October 28, 2009, and 20 percent disabling from June 11, 2019); right knee sprain (rated 10 percent disabling); left knee instability (rated 10 percent disabling); and left knee degenerative arthritis (rated 10 percent disabling). His combined evaluation for compensation was 50 percent as of October 28, 2009, and has been 60 percent as of June 11, 2019. The Veteran has not met the requirement for a schedular evaluation of TDIU under 38 C.F.R. § 4.16(a) during the relevant timeframe. In the case of a veteran who is unemployable by reason of a service-connected disability, but who fails to meet these schedular percentage standards, the case should be submitted to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. § 4.16 (b). This was accomplished pursuant to the Board's May 2021 remand after the Board determined that an October 2020 private vocational assessment and other evidence of record supported referral. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other veterans with equal rating of disability. 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. This is so because a disability rating is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has interpreted the phrase "substantially gainful employment" to include both an economic component and a non-economic component, specifically whether an occupation produces more than marginal income (economic component) and whether the Veteran is capable of performing the physical and mental acts required by employment (non-economic component). See Ray v. Wilkie, 31 Vet. App. 58, 69 (2019). Regarding the economic component, the Veteran has not been employed and, therefore, has had no income, at any time during the appeal period; however, it still must be determined that his service-connected disorders, without regard to his age, made him incapable of performing the acts required by employment. See Van Hoose, 4 Vet. App. at 363. The probative evidence of record that addresses this question is comprised of VA examination reports, records from the Social Security Administration (SSA), the October 2016 medical statement, the October 2020 private vocational assessment, and the Director of Compensation Service's conclusion. Records from the SSA indicate that the Veteran filed for benefits asserting that he was disabled because of back, knee, hearing problems, hypertension, and vision problems and that he had worked as a self-employed carpenter until May 2007. In March 2009, SSA determined that the medical evidence did not show his condition was severe enough to be considered disabling. SSA further noted that although he would be unable to meet the functional demands of his past job as a carpenter as he described it, the Veteran retained the functional capacity to meet the functional demands of the job as it is generally performed. The Veteran filed for reconsideration and the SSA reversed its decision, finding that the Veteran's disability had begun on May 1, 2007, based on a primary diagnosis of disorders of the back and a secondary diagnosis of osteoarthritis and allied disorders. During a November 2011 VA examination of the Veteran's right knee, the examiner provided an opinion as to its effect on the Veteran's usual occupation and stated that the Veteran is unable to work because of knee pain. The October 2016 medical statement determined that the Veteran had bilateral knee pain, greater on the right than the left, and that he experienced the pain daily and was unable to stand or sit at any given substantial amount of time to do the work that he was trained to do. The physician also noted what the Veteran's limitations and abilities were, in pertinent part indicating that he could work two hours per day; could stand for 60 minutes during the workday; could sit for two hours during the workday; that he could occasionally lift 10 pounds and frequently lift five pounds; that he could never bend, stoop or balance; and that he would frequently need to elevate his legs during an eight hour workday. It was the physician's opinion that the Veteran suffered from severe pain. A March 2017 VA examiner indicated that the Veteran's thoracolumbar spine (back) condition impacts his ability to work, noting that the Veteran reported he cannot lift, twist, squat, or walk distances due to his low back pain. The same examiner determined that the Veteran's right knee condition also impacts his ability to perform any type of occupational task, noting that the Veteran avoids kneeling, walking over a few feet, and standing over 15 minutes due to an increase in his right knee pain. During VA examinations conducted in June 2019, the examiner determined that the knee conditions impact the Veteran's ability to perform any type of occupational task and that he cannot squat, standing/walking less than one hour a day with walker; the Veteran's back condition impacts his ability to work because he has limitation with standing less than one hour a day, walking/weight bearing requires walker, limited lifting less than 10 pounds, and no bending. The October 2020 private vocational assessment indicated that the Veteran's records had been reviewed and the Veteran had been interviewed. He had last worked as a self-employed carpenter for Buck's Woodworking from approximately 1969 to 2007. Due to his service-connected conditions, he had difficulty with maintaining his position due to back and bilateral lower extremity pain, inability to effectively ambulate, and performing the necessary standing, walking, and sitting required in the position. He noted that due to his service-connected conditions, he had experienced instability issues in the workplace. He stated this caused problems while traversing across worksites, as well as performing the basic duties of standing and walking necessary in his position. Furthermore, he explained the pain he experienced due to his service-connected conditions caused him to take numerous unscheduled seated breaks during typical workdays. It was noted that the Veteran's brother, son, and wife all worked for him and that he had to delegate many of the physical tasks to them as he was unable to lift, stand, or walk for more than a few minutes at a time. Despite the accommodations provided by his employees, the Veteran continued to have distracting pain, stiffness, swelling, and bilateral lower extremity instability on the job. As a result of being unable to perform his job duties, he closed the business and ceased work in May 2007. It was the private assessor's opinion that the Veteran's records are consistent with an individual who is disabled and more likely than not unable to secure and follow substantially gainful employment, including unskilled sedentary employment, since at least May 2007 to the present due to his service-connected conditions, and that the Veteran is unable to perform even the physical requirements of sedentary work (as defined in the Dictionary of Occupational Titles) as a result of his service-connected conditions. The VA examiner who conducted examinations in April 2021 concluded that the Veteran's back condition impacts his ability to perform any type of occupational task due to a decreased tolerance for bending and lifting and a limited tolerance for running or prolonged standing/walking; the knee conditions also impact the Veteran's ability to perform any type of occupational task due to decreased ability to run and decreased tolerance for prolonged standing and walking. In a July 2021 memorandum, the Director of the Compensation Service determined that a review of the file shows that the Veteran was self-employed as a carpenter and, as of 2009, he was noted to have been retired for one or two years. Additionally, he was found disabled by the SSA from May 1, 2007, due to his back and osteo-arthrosis. The Director noted that the medical evidence shows the Veteran would have decreased tolerance for squatting, bending, lifting, running, and prolonged standing and walking, and that although it is conceded that his service-connected conditions do cause functional limitations, the preponderance of the evidence does not show that he is unable to obtain or maintain gainful employment due to those conditions. The Director determined that the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevents employment and that entitlement to extraschedular TDIU benefits had not been established. The October 2020 vocational assessment concluded that it is more likely than not that the Veteran has been unable to secure and follow substantially gainful employment, including unskilled sedentary employment, since at least May 2007. The Director of the Compensation service concluded that the preponderance of the evidence does not show that the Veteran is unable to obtain or maintain gainful employment due to his service-connected conditions. Since there is no reason to favor one report over the other, the Board resolves reasonable doubt in the Veteran's favor and finds that when also considering the findings of VA examiners who examined the Veteran's bilateral knee and back disabilities and the determination made by the SSA, the Veteran was unable to obtain or maintain gainful employment due to his service-connected conditions during the period in question. As such, entitlement to a TDIU on an extraschedular basis is warranted. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.