Citation Nr: 21007601 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 12-09 610 DATE: February 10, 2021 ORDER For the period prior to January 30, 2019, entitlement to a total disability rating based on an individual unemployability (TDIU) is denied. FINDING OF FACT For the period prior to January 30, 2019, the evidence does not show that the Veteran was unable to secure or maintain substantially gainful unemployment due to his service-connected bilateral knee disability. CONCLUSION OF LAW For the period prior to January 30, 2019, the criteria for a TDIU have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1971 to March 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the Veteran’s claim for an increased rating for the service-connected right knee disability. As a claim for TDIU is considered to have been raised by the record as “part and parcel” of the underlying claim, Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009), the issue of unemployability was initially raised by the record in a March 2010 VA examination for the joints. In December 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In December 2017 and July 2019, the Board remanded the case to the RO for further additional developments. In a September 2020 rating decision, the RO granted the claim for TDIU, effective January 30, 2019. However, as this grant of the claim is not representative of a total grant of the benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). As a matter of fact, the Veteran asserts that he is entitled to a TDIU, prior to January 30, 2019, because “his disabilities at the time represented adequate reasons for extraschedular consideration for individual unemployability.” See January 2021 Appellate Brief. TDIU 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. § 4.16. A finding of total disability is appropriate when there is any present impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single 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. §§ 3.340, 3.34l, 4.16(a). In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). For the period prior to January 30, 2019, the Veteran is service-connected for right total knee replacement, at a 30 percent disability rating, effective April 1, 2010; degenerative arthritis of the left knee, associated with right total knee replacement, at a 10 percent disability rating, effective December 17, 2014; and duodenal ulcer, at a zero percent, non-compensable rating. Thus, for this period of the appeal, the combined disability rating was 30 percent, from April 1, 2010 to December 16, 2014; and 40 percent from December 17, 2014 to January 29, 2019, inclusive of the bilateral factor. 38 C.F.R. §§ 4.25, 4.26. For this period of the appeal, however, the Veteran does not meet the minimum requirements for TDIU under 38 C.F.R. § 4.16(a), which requires a minimum of 60 percent or more for a single disability. Nonetheless, he asserts that his service-connected right knee disability prevents him from securing or following substantial gainful occupation. See January 2020 Form VA 21-8940: Application for Increased Compensation Based on Unemployability (TDIU Application). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must show some factor which takes the case outside the norm. The central inquiry is whether the Veteran’s service-connected disabilities alone are of enough severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not sufficient. While, a high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, and not whether he or she can find employment. Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence indicates that during this period of the appeal, the Veteran was unemployed. See e.g. July 2017 Disabled Veterans Application for Vocational Rehabilitation. His last work was in construction, in which he resigned in 2008; he completed four years of education in college; and his education and training background include carpentry contracts, plumbing, management, drywall installing, flooring installing, building codes, material cost analysis, electrical installation and repairs nad safety and material handling. See January 2020 TDIU Application. The Veteran explained that his last job required him to use his physical ability and mechanical skills to replace and repair walls, install floors, roofs, cabinets, countertops, doors an fixtures of all types; he worked in a home repair and remodelling business that required him to build new rooms and refurbish existing rooms; and that his disability did not allow him to perform duties in a safe and non-emergency manner. See January 2020 TDIU Application. At his December 2014 videoconference hearing, he testified that he was unable to go to work as a result of his knee issues. He additionally stated that he was doing construction work at the time, and especially by doing this kind of work, he did not feel like he could work; and that even though they told him that his knee was stable, it was not stable to him because when he escalates and descends steps, his leg still collapses, and thus, he is unable to escalate and descend steps. See December 2014 Videoconference Hearing Transcript. A March 2010 VA examination report for the joints, to include the right knee, reflects that the functional impact of his right knee disability has significant effects on his usual occupation. The VA examination report elaborated that the right knee disability’s impact on occupational activities, includes decreased mobility, resulting increased absenteeism, difficulty with working and carrying heavy objects, and an inability to climb stairs. At the same time, this VA examination report indicates that the Veteran was able to do light housework, such as, for example, vacuuming, and that additionally, he undertakes stretching exercises and walks twice a week for approximately a mile. A May 2015 VA examination report for knee and lower leg conditions reflect that the impact of the Veteran’s left knee disability on his ability to perform any type of occupational task could be described as pain on walking. (Continued on the next page)   A February 2019 VA examination report for knee and lower leg conditions reflects that the functional impact of the Veteran’s bilateral knee disability on his ability to perform any type of occupational task was limitations on the Veteran’s ability to do repetitive knee movements, walk up and down the stairs, walk on uneven terrain, maintain a normal gait and bear weight, stand, walk, and sit for long periods of time. Summarily, for the period prior to January 30, 2019, exceptional circumstances are not shown to warrant referral of the matter to the Director of the Compensation Service. Even though the Veteran argues that his disabilities, during the period prior to January 30, 2019, represented adequate reason for extraschedular consideration for a TDIU, see January 2021 Appellate Brief, the Veteran has not provided examples and/or described how his disabilities represented extraschedular consideration, and the medical evidence has not shown any evidence of exceptional circumstances, such as, for example, marked periods of hospitalizations due to the Veteran’s bilateral knee disability. The Veteran’s manifestations and symptoms of his service-connected bilateral knee disability are including and not limited to, pain, decreased mobility, difficulty with carrying heavy objects, an inability to climb stairs, limitations on the Veteran’s ability to do repetitive knee movements, walking up and down stairs, walking on uneven terrain, maintain a normal gait and bear weight, stand, walk, and sitting for long periods of time. However, these are not exceptional circumstances for his bilateral knee disability, for purposes of impairments that impact his unemployability, because they have already been contemplated and reflected in the assigned ratings for his service-connected bilateral knee disability. See March 2010 Rating Decision; see also May 2015 Rating Decision; see too, 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5010, 5055, 5260, and 5261. Additionally, the functional limitations of the Veteran’s bilateral knee disability were not shown to deter the Veteran from securing and/or maintaining substantially gainful employment. He completed four years of college; he reported that he had education and training in contracts, management, and material cost analysis, among other training; and he reported that he was self-employed in the construction business. See January 2020 TDIU Application; see also March 2010 VA examination report. Thus, given this educational background and training, the evidence suggests that the Veteran was likely able to work in a sedentary setting, such as, for example, an administrative setting, working with contracts, management, and/or undertaking material cost analysis. Therefore, for the period prior to January 30, 2019, entitlement to a TDIU must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.