Citation Nr: 21010053 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-19 822 DATE: February 24, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on is granted. FINDINGS OF FACT 1. As of April 9, 2014, the Veteran met the threshold percentage requirements for entitlement to a TDIU rating in accordance with 38 C.F.R. § 4.16(a). 2. Prior to April 9, 2014, the Veteran did not meet the threshold percentage requirements for entitlement to a TDIU rating in accordance with 38 C.F.R. § 4.16(a). 3. From August 4, 2008, forward, the Veteran’s service-connected bilateral knee disabilities and depression disorder have been sufficiently incapacitating as to prevent him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW From August 4, 2008, forward, the criteria for entitlement to a TDIU rating are satisfied. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1959 to August 1962 and from March 1964 to August 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision. In April 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. The Board remanded the above issue in August 2017 and November 2018. The Board finds that there was substantial compliance with the remand directives. Entitlement to a TDIU rating due to service-connected disabilities is granted. The Veteran reports that he is unemployable due to his service-connected bilateral knee disabilities and depression disorder. For the reasons discussed below, the competent evidence of record demonstrates that the Veteran’s service-connected bilateral knee disabilities and depression disorder produce unemployability. Entitlement to TDIU rating requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). 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 age or the impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to a TDIU rating. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. The Veteran is currently service connected for depression disorder, evaluated at 30 percent; chondromalacia of the right knee with degenerative arthritis, evaluated at 10 percent; chondromalacia of the left knee with degenerative arthritis and instability, evaluated at 10 percent; limitation of flexion, right knee, evaluated at 10 percent; limitation of flexion, left knee, evaluated at 10 percent; tinnitus, evaluated at 10 percent; rhinoplasty, status post deviated nasal septum, evaluated at 10 percent; extensive scarring, nose, evaluated at 10 percent; and tinea pedis, feet, and lipoma excision, each evaluated as noncompensable. See November 2014 Rating Decision. The Veteran’s combined disability rating is 20 percent, effective August 25, 1979; 50 percent, effective July 10, 2000; 60 percent, effective April 11, 2006; and 70 percent, effective April 9, 2014. Id. As of April 9, 2014, his combined disability rating is 70 percent. He was awarded service connection for his depression disorder as secondary to his service-connected knee disabilities. Therefore, because his depression and knee disabilities, which have a combined disability rating of 40 percent, result from a common etiology, they are considered as one disability for TDIU purposes. Accordingly, the Veteran satisfies the minimum percentage rating requirements of 38 C.F.R.§4.16(a) for a TDIU rating as of April 9, 2014. Prior to April 9, 2014, the Veteran did not satisfy the minimum percentage rating requirements of 38 C.F.R.§4.16(a) for a TDIU rating. Regardless, he may be entitled to a TDIU rating if it is established that he was unable to secure or follow substantially gainful employment as a result of the effects of his service-connected bilateral knee disabilities and depression disorder. 38 C.F.R. § 4.16(b). Therefore, the Board must determine whether the Veteran’s service-connected bilateral knee disabilities and depression disorder precluded him from engaging in substantially gainful employment, or work that was more than marginal, which permitted the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected bilateral knee disabilities and depression disorder, was incapable of performing the physical and mental acts required by employment from August 4, 2008, not whether the Veteran could find employment. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. In the present case, the issue of a TDIU rating on an extraschedular basis was forwarded to the Director of the Compensation and Pension Service for consideration of such an evaluation. 38 C.F.R. § 4.16(b). In an August 2020 Memorandum, the Director determined that an extraschedular rating was not warranted. The Director found that the preponderance of the evidence does not support the contention that the Veteran’s service-connected disabilities alone result in occupational and social impairment with reduced reliability and productivity or worse. The Director’s extraschedular decision is one of fact, and is reviewable by the Board on a de novo basis; it may serve to inform the Board’s review, but it is not evidence. Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015); see Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (“[A]lthough the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board’s ability to review the denial of an extraschedular rating on appeal.”). In Kuppamala, the Court stated that the Board has the requisite experience to assign extraschedular ratings, as it considers the average impairment in earning capacity in every decision involving the rating schedule, and in many instances, such as when rating a disability by analogy or conducting an analysis of a psychiatric disability under certain diagnostic codes, the Board goes beyond mere mechanical application of the rating schedule. Kuppamala, 27 Vet. App. at 457. The Board may assign an extraschedular rating when appropriate, and is only precluded from assigning an extraschedular rating “in the first instance.” Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). With respect to the term “in the first instance,” the Court has clarified that the Board may assign extraschedular ratings when reviewing either a grant or a denial of an extraschedular rating by the Director. Kuppamala, 27 Vet. App. at 456. The Board finds that an extraschedular TDIU rating is warranted from August 4, 2008, to April 8, 2014, and that from April 9, 2014, forward, a TDIU rating on a schedular basis is warranted. The evidence indicates that the Veteran has completed some college coursework. See October 2019 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. In terms of employment, the Veteran worked at the United States Postal Service from January 1981 to January 2006. Id. He last worked full-time on January 3, 2006 and was a Hispanic Program Specialist at that time. Id. While employed, he completed postal-related training, but he has not had any education or training since he became too disabled to work. Id. He stated that he became too disabled to work in the latter part of 2005. Id. He did not attempt to obtain employment after he became too disabled to work. Id. In general, the Veteran’s VA treatment records describe his consistent complaints of chronic knee pain and depression. In particular, an April 2006 VA Orthopedic Surgery Outpatient Note states that the Veteran is being followed for chronic bilateral knee pain and that he had to quit his desk job because everything hurts while walking, sitting, standing, and driving. He can barely walk a city block and he cannot sleep. A July 2009 VA treatment record shows a Depression Screening revealed that the Veteran has severe depression. A January 2020 VA treatment record shows that the Veteran complained of severe bilateral knee pain. A February 2010 diagnostic study showed mild degenerative joint disease. A September 2008 VA Knee Examination shows that the Veteran has progressively worsening knee pain and dysfunction. The right knee gives way two to three times per year. The Veteran has constant bilateral knee pain that he rates as a 5 or 6 out of 10 that flares daily to an 8 or 9 out of 10. He wears a knee brace constantly and he can stand for ten minutes and walk one quarter of a mile. The Veteran reported that he was forced to quit his job due to his knee pain because he could not tolerate the stretching and walking required of a sedentary job. A May 2008 X-ray showed mild degenerative arthritic disease with marginal spur formation and slight narrowing of the medial joint compartments. A March 2010 VA Mental Disorders (Except PTSD and Eating Disorders) Examination states that the Veteran has increased crying spells. He feels worthless because he is unable to perform certain activities, such as getting on a ladder or mowing his lawn. He would prefer to stay in bed all day and he is saddened by the fact that he cannot walk for extended periods of time. He has not applied for a job since he retired as he feels he is unable to work because of his physical limitations. The examination report describes the Veteran’s symptoms as moderate and that his difficulties would not interfere with his abilities to maintain gainful employment. A March 2010 VA Joints Examination provides that the Veteran complains of pain that he rates as a 7 out of 10 with weakness and stiffness. He has giving way on occasion. He has flare-ups due to standing, walking, climbing, or crouching that increase pain to an 8 or 9 out of 10 that are variable and last for 1 to 24 hours and increase functional limitation by 50 percent. The Veteran’s knees impact his occupation and activities of daily living concerning standing, climbing, and crouching. He can stand for 30 minutes and walk 6 blocks. He is employable regarding his knees only in a sedentary occupation that does not require standing, climbing, walking, or crouching. A February 2011 VA Joints Examination demonstrates that the Veteran has bilateral knee pain, stiffness, weakness, decreased speed of joint motion, tenderness, and flare-ups that are moderate in severity that occur weekly and last for hours. His flare-ups are caused by cold, damp weather, prolonged sitting, standing, and walking. The Veteran is unable to stand for more than a few minutes and cannot walk for more than one quarter of a mile. The Veteran always uses a knee brace and patellar support straps. He has antalgic gait, poor propulsion. The Veteran’s knees prevent him from playing sports and he cannot stand long enough to prepare a simple meal. His knees have a severe impact on completing chores, traveling, dressing, grooming, and driving and a moderate impact on shopping, recreation, and bathing. The Veteran states that he opted for early retirement because his commute to and from work was too painful for his knees and he was unable to stand at work to complete presentations. A September 2017 Knee and Lower Leg Conditions Disability Benefits Questionnaire provides that the Veteran cannot stand or sit for any length of time because of his knees. The Veteran rates his knee pain as a 5 out of 10 at rest and an 8 or 9 out of 10 when he stands or walks. He has not tried to get other employment because he cannot stand or sit for any length of time. The Veteran has trouble crouching, crawling, and kneeling for prolonged periods, and he can only perform light physical and sedentary tasks. A September 2017 Mental Disorders Disability Benefits Questionnaire states that his depression disorder causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self­care and conversation. Veteran has not worked since his last exam because of his knee/hip pain. He stopped working in December 2005 and he noted he is unable to stand and walk for long periods. He also has difficulty being seated. He stated he has to take frequent breaks when driving because of the knee pain. The September 2017 examination report indicates that the Veteran states that his mood is often correlated with the amount of hip and knee pain he experiences. The greater the pain, the worse his mood becomes. He has passive suicidal ideation on occasion, but he has never had a plan or intent. He noted he worries about his health and his “unworthiness.” He gets frustrated with himself quickly and he has “crying spells” two to three times per month. The Veteran noted his crying spells occur randomly and he will go into the bathroom and cry. He noted he is having difficulty with concentration and may forget directions and get behind on ordering his medication. The Veteran has depressed mood, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood according to the February 2017 examination report. In terms of functional impairment, the Veteran has occasional crying spells that may impact performance at work, and he is forgetful and may have difficulty remembering tasks to be completed. The Veteran’s lay statements also detail the impact of his service-connected knee disabilities and depression disorder on his employability. During a March 2011 and April 2017 hearing, the Veteran stated that was unable to commute to his job because of his knee pain. While at his job, he experienced pain while moving around. His knee pain forced him to take breaks and walk around his office. When leading presentations, the Veteran needed to prop himself against a wall or sit because of his knee pain. The Veteran advised that his depression disorder is worsening, and he has difficulty interacting with others, sleeping and concentrating per the April 2017 hearing. The Board notes the Veteran is competent to report experiencing the above symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). Additionally, the Board finds that the Veteran is credible in reporting the above symptomatology. See Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). In sum, the Board notes that the Veteran completed some college coursework, and spent his entire career in an administrative capacity at the United States Postal Service, which is a type of job his service-connected bilateral knee disabilities and depression disorder would negatively affect. In particular, the Veteran’s knee disabilities preclude the Veteran from sitting or standing for any extended period of time, which renders him unable to complete sedentary work. The Veteran’s depression disorder results in crying spells and passive suicidal ideation and causes difficulty with concentration. Additionally, the evidence does not demonstrate that the Veteran possesses sufficient transferable job skills outside of an administrative position at the United States Postal Service as he has not completed any education or training outside of this narrow field of employment. Further, the evidence cited above demonstrates that he does not have the physical and mental capabilities to obtain employment in a more physical environment. With such limitations and barriers imposed by his service-connected bilateral knee disabilities and depression disorder, the Board finds that the Veteran is unemployable due to these service-connected disabilities, effective August 4, 2008, the date he sought an increased disability rating for his service-connected knee disabilities. The Board notes that the evidence above shows that the Veteran’s service-connected knee disabilities and depression disorder would allow for him to work in a sedentary capacity. However, due to the extensive time off-task required by the Veteran’s bilateral knee pain in forcing him to constantly alternate from standing and sitting, he would be unable to adequately maintain production and pace even in sedentary employment. The Board notes that the Veteran has numerous disabilities, including tinnitus, that contribute to his unemployability. However, when the Veteran’s service-connected bilateral knee disabilities and depression disorder are taken together, they are sufficient in severity to produce unemployability. Hatlestad, 5 Vet. App. 524. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). For these reasons, the Board finds that TDIU rating from August 4, 2008, forward is warranted. Because the preponderance of the evidence is in favor of the claim, the benefit of the doubt doctrine is not applicable in the instant appeal and entitlement to a TDIU rating from August 4, 2008, forward is granted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55-57. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.