Citation Nr: 21069237 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 09-49 574 DATE: November 17, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for a left knee disability is denied. Entitlement to an initial evaluation in excess of 10 percent for a right knee disability is denied. Entitlement to a total disability evaluation based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's left knee disability is not manifested by flexion to 30 degrees or less, flexion to 15 degrees or more or ankylosis, including its functional equivalent. 2. The Veteran's right knee disability is not manifested by flexion to 30 degrees or less, flexion to 15 degrees or more or ankylosis, including its functional equivalent. 3. The Veteran has been gainfully employed throughout the applicable period. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.14, 4.45, 4.71a, Diagnostic Code 5099-5003; 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5099-5003). 2. The criteria for entitlement to an initial evaluation in excess of 10 percent for a right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.14, 4.45, 4.71a, Diagnostic Code 5099-5003; 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5099-5003). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from September 1980 to September 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In an April 2016 decision, the Board denied the Veteran's claims for initial ratings in excess of 10 percent for left and right knee strains. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2017 memorandum decision, the Court vacated that Board decision and remanded the claims. In June 2018, the Board remanded the claims for increased evaluations of the knee disabilities. In July 2020, the Board remanded the claims, as well as the issue of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU claim is part of an increased rating claim when such claim is raised by the record). In April 2021, this matter was last before the Board, at which time it was remanded. Increased Rating 1. Entitlement to an initial evaluation in excess of 10 percent for a left knee strain. 2. Entitlement to an initial evaluation in excess of 10 percent for a right knee strain. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. When a question arises as to which of two ratings shall be applied under a particular DC, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they may be compensated under different diagnostic codes (DC). See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitation, and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of the examination. Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Moreover, adjudication of a claim for a higher initial disability rating should include specific consideration of whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). A veteran may receive more than one compensable rating for different conditions of the same knee. Thus, the Board will discuss all applicable rating criteria for the knees. See VAOPGCPREC 09-04; VAOPGCPREC 23-97. Service connection has been established and each knee strain is currently rated as 10 percent disabling in both knees under DC 5099-5003. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is "built up" with the first two digits being selected from that part of the schedule most closely identifying the part, and the last two digits being "99" for an unlisted condition. Id. The rating criteria for musculoskeletal disabilities were revised effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Because this revision occurred during the pendency of the Veteran's claim, whichever version is most favorable to him must be applied. However, the new version can only be applied as of its effective date. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 7-2003; Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003). Under both the earlier and revised rating criteria, degenerative arthritis is rated under Diagnostic Code 5003. Under this code, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. Under the old criteria, DC 5256 is for ankylosis of the knee. Extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more is rated at 60 percent. Unfavorable ankylosis in flexion between 20 degrees and 45 degrees warrants a50 percent rating. Unfavorable ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent rating. A 30 percent rating is warranted for favorable ankylosis at an angle in full extension or in slight flexion between 0 degrees and 10 degrees. The criteria for the current DC 5256 are the same as the old DC 5256. Under the old criteria, DC 5257 consisted of severe, moderate, or slight recurrent subluxation or lateral instability that warranted either a 30, 20, or 10 percent disability rating, respectively. Under the current DC 5257, recurrent subluxation or instability that was unrepaired or failed repair of complete ligament tear causing peristent instability warrants a 30 percent rating. A 20 percent rating is warranted for a sprain, incomplete ligament tear, or repaired complete ligament tear causing peristent instability, or unprepared or failed repair of complete ligament tear causing persistent instability. Patellar instability warrants a 30 percent disability rating if a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription for a brace, cane, or walker. Under the old criteria, DC 5258 provided a 20 percent disability rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The current DC 5258 criteria is the same as the prior criteria. Both the old and current criteria for DC 5259 provides a 10 percent rating for symptomatic removal of the semilunar cartilage. Under the old and current criteria, DC 5260, limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. A 20 percent rating is warranted for flexion limited from 16 to 30 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. Flexion limited to 60 degrees is noncompensable. Under the prior and current criteria for DC 5261, extension of the knee limited to 45 degrees or more warranted a 50 percent rating. A 40 percent rating is warranted for extension limited from 44 to 30 degrees. A 30 percent rating is warranted for extension limited from 29 to 10 degrees. A 20 percent rating is warranted for extension limited from 19 to 15 degrees. A 10 percent rating is warranted for extension limited from 14 to 10 degrees. Limitation to 5 degrees is rated as noncompensable. Under the previous criteria for DC 5262, nonunion of either the tibia or fibula with loose motion requiring a brace warranted a 40 percent rating. For malunion of the tibia or fibula with either marked, moderate, or slight knee or ankle disability, a 30, 20, or 10 percent disability rating is warranted, respectively. Under the current criteria, DC 5262 provides for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring a brace. The DC also notes that malunion should be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee or DC 5262, whichever results in the highest evaluation. A 30 percent rating is warranted for medial tibial stress syndrome or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shore orthotics or other conservative treatment, both lower extremities. A 20 percent rating is warranted when it requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A rating of 10 percent is warranted when it requires treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. Treatment less than 12 consecutive months for one or both lower extremities is noncompensable. Genu recurvatum, acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated, is rated at 10 percent disability under both the prior and current DC 5263 rating criteria. When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran's symptoms are most prevalent ("flare-ups") due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 20407 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran was initially examined in July 2007. At this time, the Veteran reported pain in the knees with no radiation. He described flare-ups with strenuous activity. There were no episodes of dislocation or subluxation, or inflammatory arthritis. Extension was to zero degrees and flexion was to 100 degrees bilaterally, with pain at the end points. The examination report records findings relative to functional impact that there was no fatigue, weakness, or lack of endurance. The limitation was secondary to pain. Repetitive motion did not increase the loss of range of motion. The examiner recorded that there was no edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, or guarding. Functional limitations included fair weight-bearing. The Veteran used a cane and walked with a limp. There was no ankylosis. There was no shortening of leg length. The report contains a diagnosis of strained knees with residuals. X-ray examination findings were negative. At this time, the Veteran was working at a textile mill and reported that he had missed one month of work over the past year due to service-connected disabilities. In September 2008, the Veteran was once again examined. At this time, the Veteran reported pain anteriorly in both knees and flare-ups with any strenuous activity. Knee strains were assessed. There were no episodes of dislocation or subluxation. He had pain with long standing and walking and was working as an inspector in a fabric mill. Extension was to zero bilaterally. Flexion was to 95 degrees bilaterally, with pain at the end points. There was no fatigue, weakness, or lack of endurance. Limitation was secondary to pain. Repetitive motion did not increase loss of range of motion. The Veteran was next examined in October 2014. At this time, DJD of the knees was assessed by x-ray. The Veteran reported increased pain, with flare-ups about once per week, lasting about 30 minutes, aggravated by walking, and alleviated by rest, elevation, heat, and medication. Flexion of the right knee was to 75 degrees, limited by pain at that point. Extension of the right knee was full to zero degrees and without objective evidence of pain. Flexion of the left knee was also to 75 degrees, with pain at that point, and extension was full to zero degrees without objective evidence of pain. Repetitive use testing did not result in any further limitation. Joint stability tests were normal bilaterally. There was no history of recurrent patellar subluxation or dislocation, any meniscal involvement or surgery. The Veteran was working, and related that he took breaks when his knees hurt, i.e., flared-up. In April 2016, the Board denied entitlement to initial evaluations in excess of 10 percent for each knee. The Veteran appealed that determination to CAVC, as outlined above, and in June 2018, the Board remanded the matter to obtain a new VA examination to adequately address additional limitation of function following repetitive use and flare-ups. In his briefs in support of his appeal to CAVC, the Veteran asserts that his flare-ups are the "functional equivalent of total limitation of motion." In this regard, the Veteran points to the fact that during flare-ups he is prevented from bending the knees and working. In October 2019, VA afforded the Veteran a new VA examination. Bilateral knee strains and bilateral patellofemoral degenerative arthritis were assessed. At this time, the Veteran was medically retired from working as a custodian. He related that due to knee pain he was unable to stand for more than 30 minutes, and had difficulty bending and squatting from increased pain while performing his job duties. The Veteran had worked in the prior year. Because of his back pain, he had to compensate with additional pressure on his knees. He used a cane to walk, and used a walker when symptoms were worse or flared up. In addressing the presence of any additional loss of function or motion following repetitive use and flare-ups, the examiner stated that they had "no basis" to offer an opinion. The Veteran was afforded another VA examination in February 2021, with a sole diagnosis of bilateral knee strains made at that time despite the history of degenerative arthritis. The Veteran's initial range of motion for his right knee was noted to be zero degrees extension to zero degrees flexion (in other words, immobile). His left knee was measured zero degrees extension to 25 degrees flexion. The Veteran reported flare-ups in both knees and on repetitive motion, and range of motion bilaterally was zero degrees to 20 degrees. The examiner further estimated that based on the Veteran's description of functional impairment during a flare-up, that his range of motion would be limited from zero degrees extension to 10 degrees flexion, bilaterally. In April 2021 the Board remanded these claims, having inferred that the February 2021 VA examination report contained a typographical error somewhere with regard to the range of motion findings because as it stood, the range of motion findings showed the Veteran's right knee went from immobile to improved movement of 20 degrees flexion with repetitive motion and movement to 10 degrees flexion during flare-ups. In July 2021, the Veteran was afforded another examination. At this time, the Veteran reported 30-minute flare-ups several times per week, characterized as comprising aching pain and swelling, and precipitated by prolonged standing, walking, and bending. He tried to avoid bending his knees or climbing stairs due to pain. Active and passive motion of the right knee showed flexion to 70 degrees, with pain at that point, and extension to zero degrees with no pain. Active and passive motion on the left knee showed flexion to 90 degrees, with pain at that point, and extension to zero degrees, without pain. On repetitive use testing, there was no additional loss of function or range of motion in the right knee, but flexion was further limited to 80 degrees on the left. With respect to repeated use over time, the examiner identified pain as the factor resulting in functional loss, and concluded that flexion would be limited to 60 degrees on repeated use over time in the right knee and to 70 degrees in the left knee. The examiner stated also that flare-ups would result in identical additional limitation of function, i.e., flexion limited to 60 degrees on the right and to 70 degrees on the left. There was no muscle atrophy, ankylosis per se, instability, tibial or fibular impairment, or meniscal involvement. In terms of functional impact, the examiner found that pain and limited range of motion impacted the veteran's ability to perform duties which involve bending, squatting, and prolonged standing/walking. It was noted that the Veteran used a rolling walker for ambulation. In reviewing the evidence, the Board concludes that the February 2021 VA examination lacks probative value. As outlined above, the examination report contains contradictory findings, indicating that the examiner failed to properly conduct the examination or record their findings. The examination report was clearly filled out in error by the examiner. It is of limited probative value to the Board. The Board acknowledges the limitations of the VA examinations prior to the most-recent VA examination in July 2021, which properly considers additional loss of function following repetitive use and flare-ups. However, the Veteran's condition has progressively developed, and the most-recent findings do not demonstrate findings sufficient to award a 10 percent disability evaluation. The Board acknowledges the Veteran's reports symptoms, including pain, with difficulty on prolonged walking and climbing stairs, and the associated functional loss due to these symptoms. The Board also acknowledges the Veteran's increased pain during flare-ups, lasting about 30 minutes several times per week, which make it difficult for him to do much, including work, during those times. However, while his condition and flare-ups clearly cause some functional loss, they do not cause incapacitation. Even when considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements would not result in limitation of motion more nearly approximating flexion limited to 45 degrees or less or extension limited to 15 degrees or more. The Board also considered the other DCs pertaining to the knee and leg. To this end, the preponderance of the evidence does not support a separate rating under the criteria for DCs 5256, 5257, 5258, 5259, 5262, or 5263. The Veteran's left knee disability is not manifested by ankylosis, dislocation of the semi-lunar cartilage, symptomatic removal of semi-lunar cartilage, instability, including patellar instability, recurrent subluxation or lateral instability, any impairment of the tibia and/or fibula, or genu recurvatum throughout the entire appeal period. While patellofemoral degenerative arthritis has been assessed, there is no patellar instability. Thus, these diagnostic codes are not applicable in this case under the criteria either prior to February 7, 2021 or the criteria since. While the record during this period rules out actual ankylosis, consideration must still be given to whether the Veteran is functionally ankylosed. See Chavis v. McDonough, 34 Vet. App. 1 (2019). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). While the Veteran has competently and credibly reported experiencing pain and additional limitation on flares and repetitive use, and additional limited ROM has been quantified on flares and repetitive use, he never reported, nor does the record reflect, that he is unable to move his knees. He experiences the occasional need to rest because of knee pain on flare-ups and repetitive use, and while this may prevent some activity during those periods, each knee joint has retained a significant amount of range of motion, notwithstanding. The need to rest several times per week for 30 minutes on average with the retention of such range of motion, including on flare-ups and repetitive use, is not the functional equivalent of ankylosis. Extension has been full to zero degrees and flexion has never approximated 30 degrees or less, even with consideration of flares and repetitive use. Accordingly, the Board finds that the preponderance of the evidence is against finding that disability ratings in excess of 10 percent are warranted. The Board notes that a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See Lynch v. McDonough, 999 F.3d 1391, at 1395 (Fed. Cir. 2021). If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise) the claimant receives the benefit of the doubt." Id. Here, the evidence fails to approximate the criteria for the assignment of higher evaluations. The evidence is not approximate balance, and the benefit of the doubt doctrine is not applicable. The claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a total disability evaluation based upon individual unemployability (TDIU) The Veteran's representative asserts that entitlement to a TDIU is moot by virtue of the Veteran's 100 percent combined evaluation since February 2, 2021. However, this is not the case. A 100 percent schedular rating does not necessarily render a TDIU claim moot if it could potentially affect ancillary benefits, such as entitlement to special monthly compensation (SMC). In that regard, the Board notes that a veteran may be entitled to SMC if, in addition to having a single permanent disability rated 100 percent disabling under the VA Schedule for Rating Disabilities, the Veteran has an additional disability or disabilities independently ratable at 60 percent or more, separate, and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The total disability requirement must be met by a single disability, the 60 percent requirement may be met by applying the combined rating of the Veteran's remaining disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008) (noting that combined ratings satisfy the second requirement but not the first). However, the Board also notes that from November 20, 2018, through January 31, 2019, the Veteran was in receipt of a temporary total (100 percent) evaluation for his service-connected low back disability. He was awarded SMC at the "s" rate for this period. Thus, there is no possible benefit to a TDIU award, during this period, and the issue is in fact moot for this period. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley, 22 Vet. App. at 294. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or 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, provided 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. § 4.16(a). 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 or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (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 non-exertional) 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 the veteran 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, 363 (1993). The Veteran claims that his service-connected disabilities, particularly of the low back, knees, and feet, preclude him from obtaining and maintaining substantially gainful employment. He has a high school education and has worked as a custodian, an inspector/packer at a chicken plant, including work as a supervisor. He has also worked in a textile mill. See Social Security Administration (SSA) records. The Veteran has also been self-employed since approximately August 2016, although he stopped working as a custodian in March 2018. See January 2021 VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability). He has offered no information as to the nature of his self-employment. In April 2021, the Board remanded the claim, inter alia, to request further information regarding his employment history given the fact that he has claimed unemployability, but also indicated that he was self-employed and had made $35,000 over the past 12 months in January 2021. In May 2021, VA sent the Veteran a letter asking that he provide clarification of his work history from April 2005 to present. The Veteran did not respond. Turning to the relevant evidence of record, the Board finds that the Veteran has been gainfully employed during the applicable period. While the Veteran's wage history is unclear, his SSA records indicate that he made $11.49 per hour as a chicken packer and worked 12 hours per day 5 days per week, and that he worked as a supervisor where he earned $31 per hour and worked 8 to 9 hours per day 5 days per week. He also earned $15 per hour as a custodian working 4 to 8 hours per day, 5 days per week. He made approximately $35,000 per year as a chicken packer, $60,000 as a supervisor and $23,000 per year as a custodian (assuming an average of 6 hours per week). Although he retired from working as a custodian in 2018, he has apparently remained self-employed and earns about $35,000 per year in that capacity. The Veteran's earnings well exceed any poverty threshold for one person, as determined by the U.S. Department of Commerce. See Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited October 20, 2021). Accordingly, because the Veteran has been gainfully employed during the applicable period, entitlement to a TDIU is not warranted. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.