Citation Nr: 21070730 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 10-37 099 DATE: November 24, 2021 ORDER A total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to October 27, 2016, is denied. FINDING OF FACT The competent and probative evidence weighs against a finding that the Veteran's service-connected disabilities are of such nature and severity as to preclude the Veteran from securing or following substantially gainful employment for the period prior to October 27, 2016. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis prior to October 27, 2016, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the U.S. Army from February 1966 to February 1969 and from January 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has a long procedural history and has been before the Board previously. In December 2019 the Board granted the issue of a TDIU with an effective date of June 20, 2017. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Order, the Court approved a Joint Motion for Partial Remand (JMPR), in which the parties agreed that the Board failed to discuss various documents in the record that addressed the Veteran's inability to secure and follow a substantially gainful occupation prior to June 2017. The JMPR remanded the issue of a TDIU for further actions in accordance with its decision. As such, in May 2021 the Board remanded the issue of a TDIU as per the JMPR. Subsequently, after a September 2021 Supplemental Statement of the Case considered the record, this matter was returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as the Agency of Original Jurisdiction referred the issue on appeal to the Director of Compensation Service for extraschedular consideration. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). A TDIU on an extraschedular basis prior to October 27, 2016. The Veteran and his authorized representative seek entitlement to a TDIU on an extraschedular basis prior to October 27, 2016. See 11/10/2021 Appellate Brief. After reviewing the relevant lay and medical evidence, the Board finds that the competent and probative evidence is against a finding that the Veteran's service-connected disabilities preclude him from securing or following gainful employment. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the 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. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran's service-connected disabilities include an acquired psychiatric disorder (30 percent from October 4, 2019); arthritis of the left knee (10 percent from June 1, 1991, and 20 percent from June 25, 2001); left knee instability (10 percent from June 25, 2001, and 20 percent from November 6, 2019); a back disability (10 percent from June 28, 2007); tinnitus (10 percent from June 28, 2007); limitation of extension of the left knee (10 percent from June 20, 2017); osteoarthritis of the right knee (10 percent from February 6, 2003); bilateral hearing loss (non-compensable from June 28, 2007, and 10 percent from October 4, 2019); right ankle residuals of fracture (10 percent from March 31, 1992, 20 percent from November 1, 2009, and 10 percent from September 1, 2020). For background, as mentioned above, in December 2019 the Board granted entitlement to a TDIU from June 20, 2017, the day that the Veteran met the percentage requirements of 38 C.F.R. § 4.16(a). In a November 2020 Order, the Court approved the JMPR, in which the parties agreed that the Board failed to discuss various documents in the record that addressed the Veteran's inability to secure and follow a substantially gainful occupation prior to June 2017. As such, the Veteran's TDIU claim was remanded by the Board in May 2021 for a referral to the Director of Compensation Service for extraschedular consideration of a TDIU. An August 2021 discussion asked the Director to consider the period after April 10, 2012, and prior to June 20, 2017, for entitlement to a TDIU on an extraschedular basis. See 8/19/2021 VA Memo. The September 2021 advisory opinion determined that entitlement to an extraschedular TDIU was warranted from October 27, 2016. The Director concluded that from that date, the medical evidence established that the Veteran's service-connected disabilities rendered him unable to obtain employment due to a showing of worsening functional impairment due to his service-connected knee disabilities. See 9/15/2021 VA Memo. Subsequently, a September 2021 rating decision granted entitlement to a TDIU on an extraschedular basis from October 27, 2016. However, the Director's initial determination as to an extraschedular evaluation is not evidence. Wages v. McDonald, 26 Vet. App. 233, 239 (2015). Consequently, the Board must determine whether the Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board will address the Veteran's entitlement to a TDIU on an extraschedular basis prior to October 27, 2016. In this case, the Veteran, in his VA Form 21-8940, reported that he has largely been unemployed or employed part-time since June 2009, when he retired. He worked part-time (approximately 24 hours per week) from January 2015 to June 2017 as a part-time driver. The Veteran has some college education. His previous training relates to machine technology. He has education in air condition, heating, electrical work, and refrigeration. See 8/14/2017 VA 21-8940; see also 7/8/2010 Medical Treatment Records Furnished by SSA, at page 5. Turning to the competent medical evidence, VA treatment records from 2013 generally showed that the Veteran used a cane for ambulation and could only walk 100 feet before he had to stop due to knee pain. Additionally, his left knee had a painful pop and then it gave away. See 12/5/2015 CAPRI, at pages 215 and 217. The November 2009 VA examination noted as functional impact for the Veteran's right ankle disability, that the Veteran reported that he limits the time on his feet to generally no more than 15 minutes and typically walks no more than 100 feet due to being on crutches. See 11/17/2009 VA Examination. Additionally, regarding his hearing loss disability, the June 2011 VA examination showed that as functional impact, the Veteran would have poor social interactions and difficulty hearing and following instructions. See 6/10/2011 VA Examination. The examiner from the September 2007 VA examination noted that the Veteran's bilateral knee disability would have a moderate impact on his functional ability. See 9/14/2007 VA Examination, at page 18. Additionally, a functional assessment from February 2009 showed that the Veteran was able to walk 200 to 300 yards at a time and had to take a break mainly due to right foot pain. Further, he had occasional problems with stumbling, mainly with going upstairs, but could happen when walking on level or uneven ground, or if there were things, such as rugs. Also, his pain slowed him down, but did not stop him from performing his job. See 1/7/2015 Medical Treatment Records Furnished by SSA, at page 59 and 60. However, the examiner from the April 2012 VA examination reported no functional impact from the Veteran's lumbar spine and bilateral knee disabilities. Specifically, regarding his bilateral knee disability, the April 2012 examiner noted that any functional impact was due to the Veteran's weakened quadriceps rather than his service-connected knee disabilities. In this regard, the examiner stated that "[p]roblems climbing stairs, give away weakness[,] and falling are a function of the quadriceps not [degenerative joint disease]." See 4/10/2012 VA Examination. Moreover, the record showed an opinion by Dr. D.W., M.D., regarding the Veteran's exertional limitations from a physical residual functional capacity assessment for the Veteran's lumbar, bilateral knee, and ankle disabilities. According to Dr. D.W., the Veteran can occasionally lift and carry twenty pounds and can frequently lift and carry ten pounds. Additionally, the Veteran can stand and/or walk for at least two hours in an eight-hour workday and can sit for six hours in an eight-hour workday. Further, the Veteran can occasionally balance, stoop, kneel, crouch, and climb ramps and stairs, but never used ladders or crawl. See 7/8/2010 Medical Treatment Records Furnished by SSA, at pages 41-42. After reviewing the relevant lay and medical evidence, the Board finds that for the period prior to October 27, 2016, the evidence does not tend to show that the Veteran's service-connected disabilities are of such nature and severity as to prevent him from securing or following substantially gainful employment. The term "sedentary employment" is not defined in statute or regulation, and there is no requirement that it be used. See Rouse v. McDonough, 34 Vet. App. 43, 50 (2021) (stating that there is no warrant for the Court to define the term "sedentary work" or "sedentary employment," still less any reason to compel VA's adoption of the specific definition used by SSA or any other agency). However, in this case, the Board finds that "sedentary" means "doing or requiring much sitting" or "not physically active." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1123 (11th ed. 2012). It also means "1. Sitting habitually; of inactive habits; 2. Pertaining to a sitting posture." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1687 (32nd ed. 2012). So, for purposes of this decision, the Board uses the term "sedentary" to have the common meaning of a non-physical job, primarily involving sitting and usually performed in an indoor, office-type environment. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018). In the Board's review of the relevant facts, to include the Veteran's education, work history, and impairment from his service-connected disabilities, he has a complex and multifaceted disability picture. However, the evidence demonstrates that the Veteran's service-connected disabilities do not render him unable to secure or follow substantial gainful employment, to include with consideration of relevant non-economic components, such as his education and occupational history. As noted, the Veteran completed two years of college education. See 8/14/2017 VA 21-8940. He also received education in air conditioning, heating, electrical, and refrigeration between 2012 and 2014. Id. Moreover, the Veteran reported that he basically worked in a sedentary part-time job at the Post office until his retirement in 2009. See 7/8/2010 Medical Treatment Records Furnished by SSA, at page 30. This evidence tends to show that he has the work history and training to be capable of performing in a work environment that allowed him to alternate between sitting and standing and only required occasional lifting and/or carrying of approximately 10 pounds. The Veteran's prior work history at the Post Office and as a van driver also provide skills in general customer service. This foregoing facts would tend to support that the Veteran was capable of securing and following substantial gainful employment in a job, such as a service representative or reception. Such a job would not require the Veteran to walk much or to climb ladders. While the Board notes that the Veteran is service-connected for hearing loss, it was rated as noncompensable prior to October 4, 2019. The noncompensable rating prior to October 2016 tends to show little to no occupational impairment from this service-connected disability during this applicable time period. The Board recognizes that the Veteran reported frequently missing work because of his service-connected knee pain and flare-ups. As noted above, prior to October 2016, the Veteran had two 10 percent ratings for his left knee (arthritis and instability) and a 10 percent rating for his right knee (arthritis). These ratings are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Furthermore, the record showed that the Veteran started receiving disability in 2009 due to his back and knee disabilities. However, the medical records that the rater for SSA used and commented about, were regarding the Veteran's feet and his various foot surgeries. The medical record, prior to October 2016, does not tend to show that the Veteran's service-connected ankle, knees, and back disabilities impaired his ability to work to the extent that maintaining and obtaining substantially gainful employment was precluded. In support, the examiner from the April 2012 VA examination reported no functional impact from the Veteran's lumbar spine and bilateral knee disabilities. The Board finds such evidence to be probative and it tends to weigh against a TDIU for the period prior to October 27, 2016. In sum, the Board finds the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment. The Veteran's occupational and social impairment due to his service-connected disabilities are considered significant (he has a 60 percent combined rating from November 1, 2009), but not enough to render him unable to obtain or maintain substantial gainful employment. See 38 C.F.R. § 4.1 (stating that the percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations). Therefore, entitlement to a TDIU on an extraschedular basis for the period prior to October 27, 2016, per 38 C.F.R. § 4.16(b) is not warranted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.