Citation Nr: 21011733 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 08-29 869A DATE: March 2, 2021 ORDER A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) on an extraschedular basis is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from February 2000 to November 2003. This matter was most recently before the Board in August 2020. The Board remanded the issue of TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009), and requested an addendum opinion that identified all limitations or functional impairment that would be caused by all of his service-connected disabilities. In October 2020, a VA clinician provided the requested opinion. Thus, the requested development has been accomplished and the matter has returned to the Board for further appellate consideration. 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). Even if the disability percentage standards set forth in 38 C.F.R. § 4.16 (a) are not met, a TDIU may still be considered on an extraschedular basis if a veteran is unemployable by reason of service-connected disabilities, in which case, the claim should be submitted to the Director, Compensation Service, for extra-schedular consideration 38 C.F.R. § 4.16 (b). The Board notes that the Veteran’s service-connected disabilities fail to meet the percentage standards set forth in § 4.16(a). Specifically, service connection is in effect for the following disabilities: (i) multiforme erythema due to herpes simplex virus with residual scarring (30 percent); (ii) status-post right knee arthroplasty (30 percent); (iii) right shoulder disability (20 percent); (iv) right knee lateral instability (10 percent); (v) right knee anterior cruciate ligament reconstruction with arthritis (10 percent); bilateral hearing loss (noncompensable); and, (vii) right knee scar (noncompensable). His combined rating is 60 percent. The Veteran contends that he is unable to maintain substantially gainful employment, notably due to his service-connected right knee disabilities. See VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, received by VA in December 2014. On his VA Form 21-8940, the Veteran reported that he had last worked in tire wholesale from May 2005 to November 2012, that he was unable to work secondary to his right knee replacement, that he had left his last place of employment because of his right knee disability, and that he had a high school education. Id. A review of the competent evidence of record, which includes the Veteran’s VA treatment records and his lay statements, when taken in total, does not suggest the Veteran is unable obtain or maintain substantially gainful employment on account of service connected disabilities alone. The Director of the Compensation Service issued an Advisory Opinion in February 2018, which concluded that a TDIU based on an extra-schedular basis was not warranted. The Director reasoned that the evidence of record did not show that all types of gainful activity now or prevented all types of gainful activity at any time since November 15, 2012, the date the Veteran was last employed. The Director based his opinion, in part, on an adverse decision of the Social Security Administration (SSA). In its decision, SSA denied the Veteran disability benefits with a specific finding that despite his functional limitations associated with his right knee, depression, and back and neck pain, he was capable of understanding and carrying out instructions, meeting general production and quality standards and reporting to work on a continuing and regular basis. Although SSA found that the Veteran might need treatment for his conditions, and that they might limit his past work, disability could not be established because he was still capable of performing work that required less physical effort, and on a very short, on-the-job training period. Thus, he was found not disabled for purposes of receiving SSA disability benefits. The Director’s opinion is also consistent with the evidence of the record, notably several VA opinions of record. The Veteran has been afforded many VA examinations. An April 2014 VA examiner commented that the Veteran used to work in a warehouse which required heavy lifting and strenuous activity, but was released following his total knee arthoplasty. The examiner maintained that the Veteran was unable to obtain a similar job now due to his activity restrictions. See April 2014 Knee and Lower Leg Disability Benefits Questionnaire (DBQ). A March 2017 VA examiner of the Veteran’s right knee and right shoulder disabilities commented, the veteran’s condition should not preclude sedentary employment with breaks to allow him to change position during sitting. Examples of the sedentary employment include desk jobs, computer jobs or customer service jobs using the phone. The examiner further commented that the “Veteran should avoid jobs that require the activities that would worsen his right knee [and right shoulder] condition as outlined above.” See March 2017 Knee and Lower Leg and Shoulder and Arm Disability Benefit Questionnaires (DBQs)). In October 2020, and pursuant to the Board’s August 2020 remand, a VA clinician collectively opined that the Veteran’s service-connected disabilities, notably his right knee and right shoulder disabilities, had resulted in limitations in his ability to stand, walk, and run, that these limitations would not preclude non-physical work sedentary work (e.g., desk jobs, computer jobs or customer service jobs ing the phone), and that he could perform light-to-medium work. The examiner further indicated that examinations of the Veteran’s right knee revealed mild decreased range of motion and extension with negative muscle atrophy and no joint instability. The VA clinician concluded that given his current (then) conditions, light work would be acceptable in the Veteran’s previous occupation as a tire warehouse supervisor based on examination findings and imaging. The Board observes that the VA examinations show that although the Veteran’s service-connected conditions, such as his right knee and right shoulder disabilities, impose certain limitations on his work capacities, such as prolonged standing, they do not preclude him from perusing other substantially gainful occupations without involving prolonged standing. That is, the disabilities for which the Veteran is service-connected did not preclude him from obtaining or maintaining substantially gainful employment commensurate with his education (high school graduate), nor has he been shown to demonstrate any mental disability that would prevent him from being able to accomplish light to manual labor, as recommended by the VA physicians. Accordingly, a TDIU on an extraschedular basis is denied. The Board acknowledges that the Veteran is competent to report symptoms of his service-connected disabilities. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports of symptoms and their effect on his activities. He is not however competent to identify a specific level of disability of his disabilities according to the appropriate Diagnostic Codes or to assess whether the symptoms preclude employment. Such competent evidence concerning the nature and extent of the Veteran’s service-connected disabilities, and in particular his ability to work, has been provided by the VA medical professionals who have examined him. The medical findings directly address criteria under which a TDIU is assigned. The Board finds the opinions of the April 2014, March 2017 and October 2020 VA examiners to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran’s subjective complaints. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability, the evidence of record does not support his claim that his service-connected disabilities alone are sufficient to produce unemployability. Although they produce some impairment, the evidence does not reflect gainful employment is precluded solely due to the Veteran’s service-connected disabilities. In addition, the Veteran has not identified or submitted any competent evidence demonstrating that his service-connected disabilities, individually or in concert, preclude him from securing and maintaining substantially gainful employment and entitle him to a TDIU. The Board does not believe that the Veteran’s service-connected disabilities would prevent him from obtaining or maintaining substantially gainful employment consistent with recommendations provided by the April 2014, March 2017 and October 2020 VA examiners, that is in effect, non-physical work. As such, TDIU on an extraschedular basis 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.