Citation Nr: 21010395 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 12-32 523 DATE: February 24, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 7, 2016, is denied. FINDING OF FACT Prior to September 7, 2016, the Veteran’s combined service-connected disability picture did not prevent him from obtaining and maintaining substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW Prior to September 7, 2016, the criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1952 to December 1954. Commendations include the Korean Service Medal with one Bronze Star. This case comes before the Board of Veterans’ Appeals (the Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, in which the RO granted service connection for left knee osteoarthritis effective December 3, 1999, and assigned an initial 10 percent disability rating. During the pendency of the appeal, a September 2012 rating decision granted service connection for left knee instability effective December 3, 1999 and assigned a 10 percent disability rating. The Veteran appealed the initially assigned disability rating and effective date. Additionally, a December 2016 rating decision granted a temporary 100 percent rating due to convalescence for the Veteran’s service-connected left knee osteoarthritis status post total knee replacement, effective September 7, 2016, to November 1, 2017. In July 2015, the Board remanded the case for further development. In August 2017, the Board an granted an initial 20 percent rating, but not higher, for left knee instability prior to September 7, 2016; denied an initial rating for left knee osteoarthritis status post total knee replacement in excess of 10 percent prior to September 7, 2016; denied an effective date earlier than December 3, 1999, for the grant of service connection for left knee instability; and remanded the issues of entitlement to a rating in excess of 30 percent for left knee osteoarthritis status post total knee replacement after November 1, 2017, and entitlement to a TDIU. In January 2019, the RO increased the Veteran’s rating for status post total knee replacement to 60 percent effective November 1, 2017 and granted a TDIU effective November 1, 2017. In March 2019, the Director of Compensation Services denied entitlement to an extraschedular TDIU prior to September 7, 2016. In April 2020, the Board denied a rating in excess of 60 percent for left knee osteoarthritis status post total knee replacement after November 1, 2017 and denied entitlement to a TDIU prior to September 7, 2016. In October 2020, the United States Court of Appeals for Veterans Claims (Court), on the basis of a Partial Joint Motion for Remand (Joint Motion or JMR), vacated the denial of an earlier effective date for TDIU and remanded the matter to the Board for further action. Entitlement to a TDIU prior to September 7, 2016, is denied. The Veteran seeks a TDIU from December 3, 1999, to September 7, 2016. See, e.g., Brief (December 2019). During that period, the Veteran is in receipt of a combined 30 percent rating based on a 20 percent rating for left knee instability (Diagnostic Code 5257) and a 10 percent rating for left knee arthritis (Diagnostic Code 5259-5003). 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, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. 38 C.F.R. § 4.16(a). Where, as here, the Veteran does not meet the schedular criteria for a TDIU, an extraschedular TDIU may be warranted where the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the 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. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In March 2019, the Director of Compensation Services denied entitlement to an extraschedular TDIU. Accordingly, the Board has jurisdiction over the issue of entitlement to an extraschedular TDIU. In this case, the question for the Board is whether the Veteran was shown to be unable to secure or follow a substantially gainful occupation due to his service-connected disabilities of the left knee prior to September 7, 2016. The Board finds that he was not. As to educational history, the Veteran has a high school education and earned a degree as a master plumber in 1954. See VA treatment record (May 28, 2008). As to occupational history, the Veteran served as the supervisor of an asphalt plant for 5 years. After service, the Veteran worked as a plumber and eventually owned a plumbing company. See id.; VA examination (February 2009). During this period, worked as a supervisor as his knee disability precluded him from performing the tasks required as a plumber, such as kneeling and working in confined spaces. Id. It is undisputed that the lay and medical evidence of record shows that the Veteran’s left knee disability precludes him from performing the tasks required as a plumber, such as kneeling and working in confined spaces. Ultimately, however, the question is not whether the Veteran could gain or maintain his prior employment. Rather, the question is whether he could work any substantially gainful employment consistent with his background, education, and experience. See, e.g., Pederson v. McDonald, 27 Vet. App. 276, 287-88 (2015). In this case, the evidence shows that prior to September 7, 2016, the Veteran’s service-connected left knee disabilities did not preclude him from performing employment consistent with his experience as a supervisor or owning and operating a business. Initially, undisputed that the Veteran’s service-connected left knee disabilities did not impair his mental ability to perform the activities required for employment consistent with owning, operating, or supervising a plumbing business. Additionally, while the evidence shows that the Veteran’s mobility was impaired, he was still able to meet with friends and take his girlfriend to lunch with on a daily basis (see VATR, May 28, 2008); he was independent in activities of daily living, to include activities such as yardwork and snow removal (see id.); he regularly drove; and he regularly went to the gym to exercise, to include weight training with his lower extremities (see VATR, January 4, 2002; September 24, 2013). Accordingly, the Board finds that the Veteran’s service-connected left knee disabilities do not impose physical or mental impairments that would reasonably preclude him from undertaking substantially gainful employment consistent with his experience as a business owner or a supervisor. The Board acknowledges the Veteran’s report that he has been in receipt of disability benefits from the Social Security Administration (SSA) since he last worked in the 1980s. While VA has attempted to obtain the Veteran’s SSA records, the Board finds that further attempts could be futile as the SSA reported that it has destroyed such records. See Correspondence (December 2018). In any event, the Board is not bound by the SSA’s findings. In the parties October 2020 JMR, they agreed that the Board’s April 2020 decision “failed to review seemingly favorable relevant evidence,” and in particular, a September 2, 2016, VA examination report. In that report, the examiner concluded that Veteran’s left knee disability impacted his occupational functioning and that his left knee limited his activities and rendered him unemployable. The Board also acknowledges that in the September 2016 VA examination report, the examining clinician concluded that the Veteran’s left knee disability “limits this Vets [sic] activities and would make him unemployable. Mobility is markedly impaired.” The Board finds that the VA examiner’s September 2016 opinion regarding employability carries no probative value. Initially, the Board finds that the examiner’s opinion regarding employability is conclusory, as it lacks any reasoning or supporting rationale. While the examiner’s report indicates that the Veteran’s disability resulted in painful limitation of motion and instability of station, which resulted in resulted in difficulty walking and getting up from sitting to standing, the examiner’s opinion regarding employability fails to explain how such impairments preclude employability. Indeed, the ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Additionally, the examiner’s opinion fails to mention the Veteran’s employment experience, to include that as a business owner and a supervisor, or medical records relevant to his physical ability, include those showing that the Veteran regularly dined with friends, drove, tended to physically demanding weightbearing activities such as snow removal, and exercised at the gym, to include resistance training with his left leg. The examiner’s failure to address the aforementioned occupational skills and physical and mental abilities reflects that, at best, the opinion was predicated on an inaccurate factual basis. For these reasons, the Board finds that the September 2016 VA examiner’s conclusory opinion regarding the Veteran’s employability carries no probative value, and thus, does not weight in favor of a finding that prior to September 7, 2016, the Veteran’s combined service-connected disability picture prevented him from obtaining and maintaining substantially gainful employment consistent with his educational and occupational background. Finally, the Board acknowledges the December 2019 vocational assessment by Clifford Vocational Services, Inc., wherein a private vocational evaluator concluded that the Veteran’s service-connected left knee disabilities have resulted in complete inability to perform at any work level, even the sedentary unskilled level since 1983. The evaluator explained that since the Veteran last worked in the plumbing industry in 1983, he has not possessed the educational development or transferable skills required to obtain alternative unskilled employment. The evaluator reasoned that due to the service-connected left knee disability, the Veteran could not perform prolonged sitting, standing, or walking and needed to change positions so frequently that workflow would have been disrupted. The Board finds that the vocational evaluator’s December 2019 opinion carries no probative value. Critically, the evaluator determined that the Veteran had no transferable skills without regard to the Veteran’s experience as a business owner and a supervisor. The evaluator also failed to address particularly important medical records showing that the Veteran regularly dined with friends, drove, tended to physically demanding weightbearing activities such as snow removal, and exercised at the gym, to include resistance training with his left leg. Despite such evidence, the evaluator focused only on the Veteran’s inability to perform work as a plumber. The evaluator’s failure to address the aforementioned occupational skills and physical and mental abilities reflects that, at best, the opinion was predicated on an inaccurate factual basis. Collectively, the Board finds no indication that the Veteran’s service-connected left knee disabilities impaired his mental capacity to obtain or maintain employment consistent with his experience as a supervisor or a business owner. Additionally, while his service-connected left knee impairments would have precluded him from carrying out the physical requirements of employment as a plumber, the evidence shows that his service-connected left knee disability did not preclude him from carrying out the physical tasks associated with his experience as a supervisor or business owner. In short, the evidence shows that prior to September 7, 2016, the Veteran could likely have secured and followed a substantially gainful occupation consistent with his history, education, skill, and training notwithstanding limitations stemming from his service-connected left knee disabilities, that is, his only service-connected disabilities. See Ray, 31 Vet. App. at 73. Hence, the preponderance of the evidence is against the claim, and the appeal is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joshua R. Castillo, 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.