Citation Nr: 21007091 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 07-02 599 9DATE: February 8, 2021 ORDER The claim for a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted. Entitlement to an initial extraschedular evaluation in excess of 20 percent under 38 C.F.R. § 3.321(b)(1) for degenerative joint disease (DJD) of the right knee is denied. Entitlement to an initial extraschedular evaluation in excess of 20 percent under 38 C.F.R. § 3.321(b)(1) for DJD of the left knee is denied. FINDINGS OF FACT 1. The Veteran’s service-connected bilateral knee and back disabilities prevent him from securing or following a substantially gainful occupation, throughout the appellate period. 2. The service-connected right knee DJD symptomatology is adequately contemplated by the rating schedule and does not present an exceptional disability picture as to warrant an extraschedular rating. 3. The service-connected left knee DJD symptomatology is adequately contemplated by the rating schedule and does not present an exceptional disability picture as to warrant an extraschedular rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. 2. The criteria for entitlement to an initial extraschedular evaluation in excess of 20 percent under 38 C.F.R. § 3.321(b)(1) for DJD of the right knee are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.321 (b)(1). 3. The criteria for entitlement to an initial extraschedular evaluation in excess of 20 percent under 38 C.F.R. § 3.321(b)(1) for DJD of the left knee are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.321 (b)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Air Force on active service from August 1971 to February 1992. This appeal comes before the Board of Veterans Appeals (Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. This case was before the Board in 2009, 2011, 2017 and 2019. In 2009, the issues of higher initial evaluation for left and right knee disabilities was remanded for VA examination. In May 2011, the Board granted separate initial 10 percent evaluations for lateral instability of the right and left knees, and denied initial evaluations greater than 20 percent for DJD of right and left knees. The Board then remanded to the RO the issues of entitlement to extraschedular evaluations for consideration for referral to the Under Secretary for Benefits or Direction, Compensation and Pension Service (Director). The issue of TDIU was remanded as inextricably intertwined. The RO determined that referral was unnecessary and denied the claim, also denying the claim for TDIU. In September 2017, the Board denied the claims for initial extraschedular evaluations for DJD of the right and left knee and TDIU. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (hereinafter Court). In September 2018, the Court granted a joint motion for remand (JMR), vacating the September 2017 Board decision and remanding the Veteran’s claims for additional development and adjudication. As part of the JMR, the parties agreed that the Board erred in relying on the availability of higher schedular ratings when denying extraschedular referral. See King v. Shulkin, 29 Vet. App. 174 (2017). In May 2019, the Board remanded the claims for entitlement to initial extraschedular evaluations for DJD of the right and left knee, including referral to the Director. The requested development having been completed, the claims for entitlement to initial extraschedular evaluations for DJD of the right and left knee, and for TDIU are again before the Board. The Board finds that the AOJ has fulfilled the duty to notify and assist the Veteran in substantiating his claim for VA benefits, as prescribed in 38 U.S.C. §§ 5100, 5102, 5103, 5109A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). All identified and relevant records have been obtained or appropriate efforts to secure them have been undertaken, including as a result of the 2009, 2011 and 2019 remands. Adequate examinations, considering the evidence of record and including appropriate findings and rationales for claimed conditions were ultimately afforded the Veteran, including pursuant to the 2009 remand. See 38 U.S.C. § 5103A(d), 38 C.F.R. § 3.159(c)(4), and McLendon v. Nicholson, 20 Vet. App. 79 (2006). Neither the Veteran nor his attorney have argued against a finding that the AOJ has not ultimately met its duty to assist. The Board thus finds that the AOJ has met its duty to assist and further remand is not required. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). TDIU Total disability ratings for compensation may be assigned where the Schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the U. S. Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16. Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. § 4.16(a). For the purposes of the one 60 percent or one 40 percent disability, disabilities of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. § 4.16(a)(1). The Veteran has had a combined evaluation of 60 percent, including bilateral factor, effective May 16, 2005 based on service-connected bilateral knee DJD evaluated as 20 percent disabling, each, under Code 5010-5060, bilateral lateral instability evaluated as 10 percent disabling, each, under Code 5257; lumbosacral strain, evaluated as 10 percent disabling; and left (minor) thumb fracture, left (minor) forefinger fracture, and hemorrhoids, each evaluated as noncompensable. Because his compensable service-connected knee and back disabilities are of the musculoskeletal system, they may be considered as a single disability under the criteria. Thus, the Veteran meets the schedular criteria for TDIU effective May 16, 2005. As to the factual inability to obtain and maintain substantial employment, the Veteran reported in an October 2018 affidavit that his job duties required carpentry, plumbing, roofing, and electrical work. He summarized his duties to be fixing whatever was needed from changing lightbulbs to replacing furnaces. Among the activities required to perform these duties are stooping and kneeling down to fix lower cabinets or sinks and kneeling, bending, lifting, and climbing steps and ladders. In VA Form 21-8940, the Veteran reported his last worked in maintenance for a municipality, from 1995 to 2006, 40 hours per week. He left this job because of his disability and does not expect to receive disability retirement or workers’ compensation benefits. He reported having completed high school, but no further education. Records from the Social Security Administration (SSA) submitted by the Veteran document taxed earnings below the poverty threshold in 2006 and zero earnings from 2007 through 2016. In February 2019, the Veteran underwent private vocational assessment which concluded it was more likely than not that he was unable to secure and maintain substantially gainful employment as a result of his service-connected conditions since at least February 2006 to the present. Supporting this conclusion, VA examinations in 2009 and the VA examiner’s opinion in 2011 also reflect the Veteran was unemployed as a result of his service-connected disabilities, including his back and bilateral knee disabilities. Crucially, the 2011 VA examiner opined the Veteran was not able to obtain or maintain gainful employment consistent with his skill set in an administrative, tradesman, or manual-labor type of job as a result of his service-connected bilateral knee disabilities. In addition, private treatment records show the Veteran’s physician in November 2005 precluded him from performing heavy exertion, lifting greater than ten pounds, driving, use of power tools, working on ladders or roofs, and electrical work. The evidence of record shows that the Veteran has worked only in manual employment, and has no education beyond a high school diploma. In aggregate, VA and military retirement treatment records; VA examination reports dated in 2005, 2009, 2011 and 2016; 2019 vocational assessment; and a 2006 application for VA vocational rehabilitation (which was later suspended because the Veteran failed to complete the evaluation for the application) document his employment in manual labor consistent with building, construction, repairs and building maintenance. While the December 2016 VA examiner opined that the Veteran could perform in a sedentary occupational environment, as relieving factors related to his disabilities, such as sitting or not lifting, would benefit such employment, the examiner did not consider factors such as academic achievement or vocational training and skills. There is no other evidence of record demonstrating that the Veteran would be capable of obtaining and retaining substantially gainful employment in a sedentary or other non-manual professional occupation, given his personal limitations due to those factors. Accordingly, the Board finds the Veteran is precluded from obtaining and maintaining substantially gainful employment as a result of his service-connected back and knees throughout the appellate period. Entitlement to TDIU is warranted. As the grant of TDIU is not based on a single disability, but rather the combined effect of multiple conditions, it does not qualify as a “single service-connected disability rated as 100 percent…” and consideration of entitlement to special monthly compensation based on statutory housebound status is not warranted. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Extraschedular Evaluation The Veteran contends that an initial extraschedular rating is warranted for his service-connected DJD of the right and left knees under 38 C.F.R. § 3.321(b)(1). The evidence does not support his contentions. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from diseases and injuries encountered as a result of or incident to military service and their residual conditions in civil occupations. Generally, the degrees of disability specified 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 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Ratings Schedule is designed to be robust and adaptive, there will be occasions where the ratings provisions do not adequately describe and compensate a particular disability. When determining whether a claimant is entitled to an extraschedular rating, the Board must determine whether the evidence “presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.” Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff’d sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); see 38 C.F.R. § 3.321 (b)(1). An extraschedular rating under 38 C.F.R. § 3.321 (b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran’s disability. Exceptional or unusual circumstances, such as frequent hospitalizations or marked interference with employment, are required. In its May 2019 remand, the Board directed the referral of these issues to the Director for initial consideration of extraschedular entitlement, as the Board may not assign such in the first instance. In a January 2020 response, the Director declined to assign extraschedular evaluations for DJD of the bilateral knees. The Director observed the medical evidence shows the bilateral knee disability is characterized by pain, minimal limitation of motion and no more than slight instability. Relative to these findings, the Director further observed that higher evaluations remain available for greater instability and, crucially, limited motion. Also importantly, the Director observed that the evidence showed no exceptional factors such as frequent hospitalization or marked interference with employment. Rather, the 2016 VA examination found that the Veteran’s bilateral knee disability would not prevent sedentary employment. Accordingly, the Director found the rating criteria adequately describes the Veteran’s current disability level and symptomatology despite the Veteran’s significant symptoms and their interreference with his ability to work. The Board agrees. With regard to DJD of the knees, the Veteran complains of painful, limited motion. These are exactly the manifestations compensated by the applied rating criteria, particularly in light of the application of such through the lens of factors causing actual additional functional impairment, such as pain, weakness, fatigability, lack of endurance, and incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). There are no signs or symptoms not accounted for under the schedular criteria for evaluation of DJD. Further, there is no evidence of factors such as marked interference with employment or frequent periods of hospitalization due to right or left knee DJD. While all service connected conditions do result in unemployability, as discussed above, the left and right knees, in and of themselves, are not shown to result in impairment of economic inadaptability beyond that already contemplated by the schedule. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Accordingly, extraschedular evaluations are not warranted for the service-connected left and right knee DJD disabilities. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L.J. Bakke, 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.