Citation Nr: 21006076 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-11 265 DATE: February 3, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected left knee degenerative joint disease (left knee disability) is remanded. Entitlement to an initial rating in excess of 10 percent from June 23, 2003 to November 19, 2003, and in excess of 30 percent from January 1, 2005 for service-connected right knee degenerative joint disease (right knee disability) is remanded. Entitlement to an initial rating in excess of 20 percent for service-connected lower back disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 20, 2003 is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Marine Corps from July 1954 to March 1956. The Veteran passed away in November 2013. The appellant, who is the Veteran’s widow, was granted substitution as the claimant in May 2013. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In December 2020, the appellant and her daughter, testified at a video-hearing before the undersigned. A transcript is of record. During the December 2020 hearing, the appellant raised the issue of an entitlement to a TDIU due to the Veteran’s service-connected disabilities prior to January 1, 2005. The Board notes that after January 1, 2005, the Veteran was already in receipt of a TDIU. Accordingly, that matter needs to be addressed as well. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the appellant’s claim and to afford her every possible consideration. 1. Entitlement to an initial rating in excess of 10 percent for service-connected left knee degenerative joint disease (left knee disability) is remanded. 2. Entitlement to an initial rating in excess of 10 percent from June 23, 2003 to November 19, 2003, and in excess of 30 percent from January 1, 2005 for service-connected right knee degenerative joint disease (right knee disability) is remanded. 3. Entitlement to an initial rating in excess of 20 percent for service-connected lower back disability is remanded. The Board notes that a remand is warranted to obtain missing treatment records. During her December 2020 the appellant testified that the Veteran had received at-home nursing case. Those records, if any, have not been associated with the Veteran’s file. Because the clinical records of the treatment, if obtained, could bear on the outcome of the appellant’s appeal, efforts must be made to procure them. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(c). See also 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). 4. TDIU prior to November 20, 2003 is remanded. 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. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. As noted in the introduction, the appellant’s TDIU claim was found to be part and parcel of the increased rating claims. From November 20, 2003 to December 31, 2004, the Veteran was rated at a combined 100 percent for his service-connected disabilities. The Board notes that the presence of a schedular 100 percent disability rating does not necessarily render the issue of TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). In this case, however, while the Veteran did have a single disability that was 100 percent rated; and the appellant, nor the Veteran in his October 2009 TDIU application, does not allege that any single disability rendered the Veteran unable to work. Rather, they have contended that that the combined effect of his service-connected disabilities rendered him unemployable and, therefore, under the facts of this case, his 100 percent schedular combined disability ratings, from November 20, 2003 to December 31, 2004, does render the TDIU claim moot, effective during that period. Furthermore, from November 20, 2003 to December 31, 2004, the Veteran already was in receipt of SMC. Prior to November 20, 2003, the Veteran was service-connected for a right knee disability, rated at 10 percent disabling; a left knee disability, rated at 10 percent disabling; a left foot disability, rated as 20 percent disabling; a right foot disability, rated as 20 percent disabling; and a lower back disability, rated as 20 percent disabling. His combined evaluation was 60 percent. Thus, prior to November 20, 2003, the Veteran did not (at least not currently) meet the initial eligibility requirements to receive TDIU benefits. 38 C.F.R. § 4.16(a). If a claimant does not meet the threshold criteria, a TDIU may still be assigned but on a different basis. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 38 C.F.R. §4.16(b). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director, Compensation Service, for extraschedular consideration. Id. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the Board’s sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence showing the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. Here, in light of the evidence suggesting the possibility that the Veteran’s service-connected disabilities could have impacted his ability to maintain substantial, the Board finds the threshold for referral has been met. But see Ray, 31 Vet. App. 58 (emphasizing that referral for extraschedular consideration to the Director is merely a quasi-factual finding and not binding on the Board). The Board notes the appellant’s contentions that the Veteran was unemployable due to his service-connected disabilities, including his bilateral knee disabilities, bilateral feet disabilities, and lower back disability. The Veteran reported that he last worked full-time in 1996 and that he became too disabled to work December 1996. He had a high school education. His full-time employment history was 40 years spent working as an operator at Whirlpool. See October 2009 TDIU Application. The Veteran’s wife reported that the Veteran’s “health had gotten to the point that he could not continue to work due to the physical demands of his job duties.” See October 2009 Statement. In December 2020, the appellant testified that the Veteran became wheelchair bound in 2000. During this time, the Veteran’s daughter testified that the Veteran required the assistance of the appellant to complete activities of daily living. It was reiterated that the Veteran had retired due to medical reasons. In light of the impact of the Veteran’s physical functional limitations from his service-connected disabilities, and his educational and employment background, resolving doubt in favor of the Veteran, the Board finds the lay and medical evidence as a whole suggests that the Veteran may have been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to November 20, 2003. Accordingly, while the development of the increased ratings claims being remanded here are certainly inextricably intertwined with the TDIU issue on appeal here and should be developed first, the Board finds if the ratings are continued – that is, if the combined rating continues not to meet the schedular threshold, the TDIU claim should be referred to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b); see also Floyd v. Brown, 9 Vet. App. 88 (1996); Anderson v. Shinseki, 22 Vet. App. 423 (2009). The matters are REMANDED for the following action: 1. Ask the appellant to provide a release for relevant records of treatment from any private practitioners or, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. Specifically, at-home nursing reports should be sought. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant should be notified. (Continued on the next page)   2. Based on any new evidence received, readjudicate the bilateral knee and low back ratings on appeal. If increased ratings are warranted and the schedular criteria is now met for TDIU prior to November 20, 2003, then readjudicate the TDIU claim. If the schedular criteria is not met for TDIU, refer the appellant’s claim of entitlement to TDIU to the Director of Compensation Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. A copy of the Director’s decision must be associated with the claims file. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.