Citation Nr: 21075359 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-28 542A DATE: December 20, 2021 REMANDED A total disability rating based on individual unemployability (TDIU) prior to May 1, 2013. REASONS FOR REMAND The Veteran served on active duty from June 1966 to March 1968 and in May 1985 with additional periods of service in the National Guard. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In an October 2020 decision, the Board denied an effective date prior to May 1, 2013 a TDIU. The Veteran appealed the Board decision to the United States Court of Appeal for Veterans Claims (Court) and, in July 2021, the parties to this appeal entered into a Joint Motion for Remand (Joint Motion), in which the parties agreed that the Board's denial of a higher initial PTSD rating should be vacated. The Court granted the Joint Motion in an Order issued in August 2021. Entitlement to a TDIU prior to May 1, 2013. The Veteran is seeking a TDIU prior to May 1, 2013. In December 2008, the Veteran filed a claim a TDIU. At such time, he had a claim for an increased right knee pending was received, the Veteran's service-connected disabilities were a combined 30 percent disabling; as of that date, the Veteran's disabilities included right knee osteoarthritis, rated at 20 percent, and right knee instability, rated at 10 percent. As of March 31, 2010, the Veteran's service-connected disabilities increased to a combined 40 percent disabling; as of that date, the Veteran's service-connected disabilities included right knee osteoarthritis, rated as 20 percent disabling, and right knee instability, rated as 20 percent disabling. Since May 1, 2013, the Veteran has been in receipt of either a temporary total disability rating or a TDIU. However, the Veteran did not meet the schedular requirements for a TDIU prior to May 1, 2013 outside of the temporary total rating period starting March 19, 2012. Regarding his education and employment history, in a February 2009 TDIU application, the Veteran reported that he had completed four years of high school and a three-month petroleum technology course and had experience as an army depot federal security officer, dish washer, and janitor. He reported last working in September 2006 and denied seeking employment after such date. In April 2010, the Veteran submitted a March 2010 vocational assessment prepared by a private physical therapist, M.A.. M.A. concluded that the Veteran's right knee symptoms and limitations resulted in "limited ability to return to a competitive work force." M.A. stated that this was "primarily due to exacerbation of his symptoms with an inability to sustain weight bearing through his knee for longer than the zero to 3 hours in an 8 hour time frame. M.A. also stated that "material handling ... would target [the Veteran's] right knee instability symptoms and increase pain consistently when asked to squat, walk, climb, or push or pull weight." Finally, M.A. stated that the Veteran would require 30 minutes of rest for every 15 minutes of activity, putting the Veteran "off task at least 50% of the time." The assessment also included extensive functional testing. VA treatment records and SSA medical reports indicate that, prior to his right knee total knee replacement in March 2012, the Veteran was experienced knee instability secondary to a chronic anterior cruciate ligament (ACL) deficiency, chronic knee pain, and osteoarthritis. See January 2007 physician letter; VA orthopedic consult and X-ray report dated November 2006. A July 2008 medical evaluation associated with the Veteran's SSA claim indicates that the Veteran had "difficulty sitting because of the inability to full bend his knee," inability to stand for long periods of time due to knee pain and instability, and inability to lift or carry objects due to right knee pain and instability. See July 2008 disability evaluation. Finally, a July 2008 SSA disability determination concluded that the Veteran had been disabled from September 25, 2006. The primary diagnosis was degenerative joint disease (DJD) right knee. See July 2008 SSA disability determination. As noted above, the Board denied a TDIU prior to May 1, 2013 in an October 2020 decision. In August 2021, the Court found that the Board failed to address a March 2010 private functional capacity evaluation and Social Security Administration (SSA) records. In the March 2010 evaluation, the examining therapist opined that the Veteran's knee symptoms "limited [his] ability to return to competitive work force" and noted that "[r]educed employability was also affected because of the amount of time that [the Veteran] requires to rest after exertion." Furthermore, the Court concluded that, although the Board had acknowledged an SSA determination of disability from September 25, 2006, it failed to address the decisions and medical reports associated with that determination. Recently, the Court has held that where a veteran has appealed entitlement to TDIU on an extraschedular basis, the Board must make an initial decision as to whether there is a reasonable possibility that a veteran is unemployable because of service-connected disabilities. See Snider v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 2050 (November 19, 2021). In this case, the Board finds that a remand is required due to a reasonable possibility that the Veteran was unemployable at some point prior to May 1, 2013 due to his service-connected disabilities. However, the Board notes that this determination is in no respects a finding that the evidence is in equipoise or weighs in favor of a finding that the Veteran was unemployable at some point prior to May 1, 2013. In addition, this decision makes not findings regarding the competency or credibility of any of the evidence discussed herein or the other evidence of record. The claim is REMANDED for the following action: Refer the Veteran's claim to the Director Compensation and Pension Services for consideration of assignment of a TDIU on an extraschedular basis prior to May 1, 2013. DAVID JIMERFIELD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.