Citation Nr: 21011677 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 12-18 121 DATE: March 2, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The weight of the evidence does not show that the Veteran is unable to obtain or maintain substantially gainful employment on account of his service-connected disabilities, notably his left knee disabilities and migraine headaches. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1983 to September 1998. A video conference hearing was held in February 2015 before the undersigned Veterans Law judge. A transcript of the hearing testimony is of record. The Veteran seeks entitlement to TDIU. A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and 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 disability or more. 38 C.F.R. § 4.16 (a). Disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor if applicable, as well as disabilities resulting from common etiology or a single accident, disabilities affecting a single body system, multiple disabilities incurred in action, and multiple disabilities incurred as a prisoner of war are considered as one with respect to the 60 percent and 40 percent requirements. Id. The 70 percent requirement is derived not by adding together the ratings for all disabilities but by use of a combined ratings table. 38 C.F.R. § 4.25. The Veteran seeks entitlement to a TDIU rating. He maintains that he is unable to secure substantially gainful employment, in part, because of his service-connected left knee disabilities. See VA Form 21-8940, Veterans Application for Increased Compensation Based on Individual Unemployability, received by VA in September 2013. Here, the Veteran has been assigned the following disability ratings for his service-connected disabilities: 40 percent for a status post right total knee disability from July 1, 2008 to August 31, 2014 and 30 percent thereafter from September 1, 2014; 100 percent for a left total knee replacement from January 21, 2014 to February 28, 2015, and 30 percent thereafter from March 1, 2015; 10 percent for bilateral knee tender surgical scars from May 22, 2007 to September 26, 2018 and 30 percent thereafter from September 27, 2018; 10 percent for left knee post arthroscopy for medial meniscal repair with degenerative joint disease from July 23, 2008 to January 21, 2014;10 percent from April 30, 2010 to January 21, 2014 for left knee instability, and a noncompensable rating for left knee scar associated with left TKR from January 21, 2014. The Veteran’s total combined rating for his service-connected disabilities for the appeal period is at least 70 percent from February 4, 2009, the date the Veteran’s claim for increased compensation for his service-connected left knee disabilities, to include a 50 percent rating for his migraine headaches. The compensable rating was increased to 90 percent as of February 2012. Thus, as the Veteran has one service-connected disability ratable at 40 percent or more and a combined rating of 70 percent or more from February 4, 2009, he has met the schedular criteria for TDIU for the entire appeal period. The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners’ conclusions, as well as those of private medical professionals are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran’s ability to obtain and maintain employment consistent with his or her education and experience. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court interpreted the phrase “unable to secure and follow a substantially gainful occupation” to have two components: one economic and one noneconomic. The economic component means 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, and the noneconomic component requires more than determining the presence or absence of employment producing income exceeding any particular threshold. The ultimate inquiry on the Veteran’s ability to secure or follow that type of employment. The Court also provided that to determine 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. As the Veteran meets the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a), outside of his temporary 100 percent assignment. The question remaining is whether the Veteran is or was unable to secure and/or follow a substantially gainful occupation due to his service-connected disabilities during the relevant period. In considering what constitutes substantially gainful employment the Board will consider 1) a veteran’s work history, education, and training; (2) his/her physical ability to perform types of activity; and (3) his/her mental ability to perform required activities. The Board finds that the weight of the evidence is against a finding that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities for the entire appeal period. Initially, in a precedential decision, the United States Court of Appeals for Veterans Claims (Court) found that there was no mention or definition of “sedentary work” in the applicable statutes or regulations, and therefore, “the concept of ‘sedentary work’ is not necessarily part of a proper TDIU analysis.” Withers v. Wilkie, 30 Vet. App. 139 (2018). The Court declined to define the term. If the Board relies on the term “sedentary work” in making a determination of entitlement to TDIU, the Board must explain the meaning derived from that concept. Here, sedentary employment is considered by the Board to be as employment requiring or marked by much sitting (a sedentary desk job). Further, where a Veteran’s ability to perform sedentary work is a basis for the Board’s decision, the meaning of sedentary work must be determined from the particulars of the medical opinion in which it is used. That is, the Board must explain this meaning to the extent that it is not apparent from the Board’s overall discussion of the opinion as well as how the concept of sedentary work factors into the Veteran’s overall disability picture and vocational history, and the Veteran’s ability to secure or follow a substantially gainful occupation. The Board must consider the Veteran’s education, training, and work history. 38 C.F.R. § 4.16. The Veteran maintains that he is unable to secure substantially gainful employment, in part, because of his service-connected left knee disabilities. On VA Form 21-8940, Veterans Application for Increased Compensation Based on Individual Unemployability, received by VA in September 2013, the Veteran reported that he had last worked in December 2009 as a network analyst; that he had completed two (2) years of college; and that he expected to received Social Security Administration (SSA) benefits. VA examiners in May 2014 and July 2019 have collective opined that the Veteran’s service-connected left knee and lumbar spine disabilities have caused him to have difficulty running, squatting, twisting, and walking for long periods. The Veteran was found not to have been able to perform any activity that required prolonged standing and walking. The July 2019 examiner opined that the Veteran’s headaches impacted his ability to work in that he would have to rest during headaches. Hence, according to the examiner, his disabilities impaired the ability to perform physical activities of employment. See May 2014 and July 2019 Knee and Lower Leg and May 2014 Headache Disability Benefits Questionnaires (DBQs). In an August 2019 opinion on employability, a VA clinician opined that the Veteran was capable of non-physical work that encompassed exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push and pull. The VA clinician further indicated that the Veteran could perform non-sedentary work that involved sitting most of the time, but may involve walking or standing for brief periods of time. The clinician related that a non-physical job was defined if the position required walking and standing only occasionally and all other sedentary criteria are met. See Individual Unemployability Statement, signed by a VA clinician in August 2014). The VA examiners’ findings are supported by the other evidence of record. Specifically, the Veteran’s VA Vocational Rehabilitation and SSA records. VA Vocational Rehabilitation records pertinently reflect that the Veteran was enrolled due to an employment handicap, primarily stemming from headaches. The Veteran’s rehabilitation plan was to acquire an associate’s degree. The Veteran completed training in December 6, 2015 with a Bachelor of Science Degree in information system cyber security, and vocational rehabilitation services were extended to the calendar year 2017 to assist him in finding employment. The Veteran agreed to actively seek employment. SSA records show that the Veteran testified that he had stopped working because his employer had downsized and, as a result, he was laid off. The SSA reviewer determined that it was reasonable to infer that the Veteran’s impairments would not have prevented the performance of his previous job, since it was being performed adequately at the time the Veteran was laid off, and the layoff was on account of downsizing. The SSA reviewer noted that there was no evidence of a medical opinion from any medical source that the Veteran was disabled or that showed he had greater limitations than those determined in its July 2015 decision. The Veteran was not found to have been disabled per SSA regulations. The Board notes that while not binding on VA, it takes notice of SSA’s definition of non-physical work which involves lifting no more than 10 pounds at any time, occasionally lifting or carrying items like office supplies, files, small tools, etc. and which may require standing or walking only occasionally (less than or equal to two hours total in an eight-hour work day) but involves sitting most of the time. In addition, SSA defines light work as occasionally lifting/carrying 20 pounds and frequently lifting/carrying 10 pounds; standing, sitting or walking a total of six hours out of an eight-hour day. Here, the evidence of record uniformly discloses that the Veteran’s service-connected disabilities allow him to perform non-physical/light work. Further, the Veteran’s past occupation as cyber security/information technology is not considered to be a physically demanding occupation. In addition, SSA concluded that the Veteran could perform non-physical/light work with some restrictions. While the Board does not wish to minimize the nature and extent of the Veteran’s statements and overall disability, the evidence of record does not support his claim that his service-connected disabilities alone, or in conjunction with one another, were sufficient to produce unemployability. Accordingly, a TDIU is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.