Citation Nr: 21010235 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-18 324 DATE: February 24, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities did not meet the schedular criteria for a TDIU rating, and the preponderance of the evidence of record is against a finding that his service-connected disabilities were of such nature and severity as to preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1988 to April 1992. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in July 2018 and May 2020. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See, Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU Total disability rating 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). During the pendency of this appeal, the Veteran was service-connected for an upper lip scar, rated at 30 percent from December 9, 2004; Pellegrini-Stiedas disease of the right knee, rated at 10 percent from October 17, 2002; right knee instability rated at 10 percent from April 26, 2010; limited left knee extension rated at 10 percent from August 27, 2010; right elbow olecranon bursitis rated at 10 percent from March 28, 2017; tinnitus rated at 10 percent from March 28, 2017; and a noncompensable rating for limited left knee flexion. The Veteran has a combined disability rating of 60 percent from March 28, 2017. Consequently, the Veteran did not meet the schedular rating for a TDIU. Even when a Veteran does not meet the percentage standards for schedular TDIU, he may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Put differently, the Board may consider whether referral to the Director of Compensation Service (Director) for extraschedular consideration is warranted. In the May 2020 Board decision, the issue of entitlement to a TDIU, on an extraschedular basis, was referred to the Director. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such 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, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court also held in Ray that the Board’s determination to refer a case for extraschedular consideration under § 4.16 (b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board “must provide adequate reasons or basis for deviating from its earlier referral decision.” Ray v. Wilkie, at 62; see also Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that the Director does not have nonreviewable discretion and the Board has the jurisdictional authority to review the Director’s extraschedular decisions). The Veteran completed a VA form 21-8940 in August 2010. The Veteran reported that he became too disabled to work in June 2008. The Veteran stated that he previously worked as a bobcat operator for a construction company until 2008. The Veteran further reported that he has a high school education and no additional education or training before or after becoming too disabled to work. In a March 2005 right knee examination, the Veteran reported working as a construction worker, and stated that his worked required much walking which exacerbated his right knee pain. In an April 2007 examination, the Veteran indicated that his ability to walk for extended periods is limited. The Veteran specifically reported that he is limited regarding chores such as mowing the grass, and that he must stop and rest because of his knee pain. Additionally, he stated that he also has significant difficulty in climbing stairs. Regarding his employment, the Veteran reported that he drives heavy equipment at work. He further reported that he sits all the time at work, and he cannot sit for a lengthy period of time because his knee gets stiff and hurts, and he has to get up and walk around. In an April 2010 statement, the Veteran stated that he has been in the receipt of Social Security disability benefits since March 2009. The Veteran further stated that he left his previous employment because he was unable to maintain the standards required for the position. The Veteran indicated that the job required the use of his right foot to put pressure on the opening and closing of the bucket, which caused severe pain and swelling to his right knee. The Veteran further stated that his job required him to sit in this position sometimes more than 12 hours depending what the job called for the day. The Veteran underwent a right elbow examination in June 2007 and reported working as an air conditioning repairman at the time. In an October 2011 examination for the Veteran’s scar disability, the examiner indicated that the Veteran’s scar disability did not impact his ability to work. In October 2011 examinations for the Veteran’s knee and right elbow disabilities, the examiner indicated that the Veteran’s conditions impacted his ability to work. In an October 2011 medical opinion, the examiner found that the Veteran had mild functional impairment for physical employment attributable to his service-connected right knee disability, but that the Veteran did not have any functional impairment for sedentary employment attributable to any service-connected medical conditions. Further, the examiner found that the Veteran had mild functional impairment for physical employment attributable to his non-service connected left carpal tunnel syndrome. The examiner also stated that the Veteran did not have functional impairment for sedentary employment attributable to non-service-connected medical conditions. In a May 2015 statement, the Veteran stated that his right knee disability prevented him from getting in and out of trucks without being a liability to his employer. However, the Veteran also stated that he is not restricted in every day physical activity and movement. The Veteran had another examination in July 2017. The examiner diagnosed the Veteran with Pellegrini-Stieda disease and degenerative arthritis. Notably, the examiner found that the Veteran did not have any symptoms related to his Pellegrini-Stieda disease, and that his symptoms are related to joint degeneration caused by age, gout, and obesity. The examiner noted that the Veteran regularly used a brace as an assistive device. The examiner found that the Veteran’s knee disability did not impact his ability to perform any type of occupational task. The Veteran had an examination for his elbow condition in September 2017. The examiner noted that the Veteran’s right elbow disability impacted his ability to function. The examiner noted that the Veteran has been unemployed since 2008 and that he previously worked as a construction equipment operator. In a September 2017 examination for the Veteran’s tinnitus, the examiner noted that the Veteran’s tinnitus impacted his ability to function. Specifically, the examiner noted that the Veteran’s tinnitus makes it hard for the Veteran to concentrate. The Veteran had another examination for his knee disabilities in April 2019. The Veteran reported that he regularly uses a knee brace, a cane, and a walker. The examiner noted that the Veteran’s bilateral knee condition impacted his ability to work. Specifically, the examiner noted that the Veteran has difficulty with sitting, standing, and walking, and regularly uses assistive devices such as a cane, walker, and knee brace. In VA treatment records from July 2020, the Veteran reported that he has pain, but that it is “normal age and use stuff” and that it does not bother him. The Veteran reported that he was walking again with a walking group where he would walk for 30 minutes three times per week. The Veteran further stated that he spends his day doing house chores and caring for his grandsons. As addressed above, the Veteran did not meet the schedular rating for TDIU. As such, entitlement for a TDIU based on an extraschedular consideration was implicated, and in May 2020, the Board remanded the claim finding the Veteran provided some evidence sufficient to warrant referral to the Director, for extraschedular consideration of a TDIU. In an October 2020 determination, the Director considered the Veteran’s record and concluded that the evidence of record does not demonstrate that the Veteran’s service-connected disabilities, or a combination of the effects of those disabilities, prevents employment. The Director noted that the April 2019 knee examination noted that repeated use and flare-ups resulted in additional reduced ranges of motion, and that the Veteran reported using a cane, braces and walker due to knee pain. However, the Director further noted that subsequent VA treatment records note that the Veteran has increased his physical activity with resolution of pain and overall feeling substantially better, and that he reported walking every day and participating in activities at church, with household chores and activities with his grandchildren. Additionally, the Director noted that the medical records indicate that the Veteran has right elbow pain and reduced range of motion as well as difficulty hearing due to tinnitus. However, the Director concluded that the medical history does not support entitlement to a TDIU benefit on an extraschedular basis. Ultimately, the evidence of record failed to support that the Veteran’s service-connected disabilities caused an exceptional situation that prevented gainful employment. After a thorough review of the record, the Board finds that the preponderance of the evidence shows that the functional limitations imposed by the Veteran’s service-connected disabilities do not render him unable to secure and maintain substantially gainful employment. As such, TDIU is not warranted on an extraschedular basis. Although the Veteran has mobility issues due to his service-connected bilateral knee disabilities, the probative medical evidence of record indicates he was still likely able to secure and maintain substantially gainful employment. Specifically, although the April 2019 examiner noted that the Veteran has difficulty with sitting, standing, and walking, and regularly uses assistive devices such as a cane, walker, and knee brace, VA treatment records from July 2020 note that the Veteran is able to walk for extended periods and complete household chores. The evidence of record indicates that although the Veteran does have mobility issues, they are not of the severity to preclude the Veteran from securing or maintaining gainful employment. The Veteran has a high school diploma and experience as a construction equipment operator. Based on his level of functioning evidenced in treatment records, the Board finds that the preponderance of the evidence of record is against a finding that his service-connected disabilities were of such nature and severity as to preclude him from securing and following any substantially gainful occupation. Furthermore, the Board recognizes that the Veteran has been in receipt of Social Security Administration (SSA) disability benefits. However, SSA determinations, while probative, are not binding on the Board, as they involve the application of different legal standards. See Collier v. Derwinski, 1 Vet. App. 413 (1991). Accordingly, the Board agrees with the determination of the Director, that an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b) is not warranted in this case. While there is evidence that the Veteran has limited mobility due to his service-connected disability, the preponderance of the evidence is against the claim. The record has not demonstrated that the Veteran’s service-connected disabilities are so severe that they preclude an ability to secure and follow gainful employment when considering his education, training, and occupational experience. Therefore, the claim is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.