Citation Nr: 21012365 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-27 578 DATE: March 4, 2021 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to an extraschedular TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1978 to August 1980. This matter was previously remanded by the Board for development in July 2018 and has been returned for appellate review. 1. Entitlement to an extraschedular TDIU is granted. The Veteran seeks a TDIU. He contends that he had to retire due to his service-connected disabilities. See July 2012 VA form 21-4138. An award of a TDIU requires a Veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disabilities. For schedular consideration, a Veteran must meet one of the following conditions: 1) a single service-connected disability rated at 60 percent or more, or 2) at least one service-connected disability rated at 40 percent or more with an additional service-connected disability sufficient to bring the combined rating to 70 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). At the outset, the Board notes that the Veteran does not meet the schedular requirements for a TDIU. Indeed, throughout the appeal period the Veteran’s service-connected disabilities are as follows: right knee degenerative joint disease with limitation of flexion, rated 10 percent from October 15, 2007, 20 percent from July 11, 2012, and 30 percent from September 9, 2013; left knee degenerative changes associated with right knee degenerative joint disease with limitation of flexion, rated 10 percent from October 15, 2007; and right knee injury, postoperative rated 10 percent from March 1, 2008. The Veteran has not had at least one disability rated at 60 percent or more, nor one disability at 40 percent with an additional disability sufficient for a combined rating of 70 percent. However, even when the percentage requirements are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on an extraschedular basis without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16(b). In September 2020 the Director of Compensation performed an administrative review of the record and provided a negative opinion. Although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16(b)). The Director’s decision is not evidence, but, rather, the de facto agency of original jurisdiction (AOJ) decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. 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 it to award an extraschedular rating. Ray v. Wilkie, 31 Vet. App. 58 (2019). In determining whether the Veteran can “secure and follow” such employment, attention must be given to: the Veteran’s occupational history, education, skill and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities. Id. Consideration may not be given to the Veteran’s age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. § §§ 3.341, 4.16, 4.19. A disability rating, itself, is recognition that industrial capabilities are impaired. Van Hoose v. Brown, 4 Vet. App. at 363. Indeed, according to 38 C.F.R. §§ 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. The mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. Id. Moreover, for entitlement to an extraschedular TDIU specifically (as is the case here), the Veteran’s service-connected disabilities must present an exceptional or unusual disability picture such that the symptomatology associated with these disabilities, alone or in combination, is not contemplated within the relevant rating criteria. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran filed a claim for TDIU in July 2012. See July 2012 VA Form 21-526b. In support of his claim, he submitted an August 2012 application for increased compensation based on unemployability, wherein he reported that his work experience included work as janitor, bus driver, and groundskeeper/janitor until June 29, 2012. See August 2012 VA Form 21-8940. He reported that he became too disabled to work on June 29, 2012 as a janitor/bus driver/groundskeeper because his right knee end stage osteoarthritis prevents him from substantially gainful employment. Id. The Veteran’s records obtained from the Social Security Administration (SSA) include an assessment of vocational factors, which listed the Veteran’s past relevant work as a janitor/groundskeeper/bus driver from October 1984 to June 2012, working seven hours per day, five days a week, and earned approximately $2,300.00 per month. He reported that he stopped working on June 28, 2012 because of his conditions, including his knees. The Veteran’s highest grade of school completed was documented as 12th grade. Id. A February 2012 private orthopedic treatment note revealed the Veteran has sharp knee pain, giving way, and popping. The Veteran’s knee symptoms are aggravated by daily activities, going up and down stairs, standing, and walking. He walks with a limp. He has had several surgeries on the right knee and open meniscectomy and arthroscopic procedures. The Veteran has restricted range of motion. He is able to walk for approximately 10 minutes. A March 2012 private orthopedic treatment record indicated the Veteran has end-stage osteoarthritis of the right knee; walks with crutches; and his symptoms are aggravated by work activities. The Veteran submitted a May 2012 Report of Disability, Part I: Statement by Examining Physician which revealed that Dr. J.T. opined the Veteran is totally incapacitated from further performance of his duties as a school bus driver and janitorial work. See July 2012 third party correspondence. Dr. J.T. explained that due to the severe degeneration of his right knee, the Veteran could not climb, except occasionally and could only occasionally stoop, bend, and crawl. Dr. J.T. indicated the Veteran could not lift or carry greater than 20 pounds. An August 2012 correspondence from the Veteran’s former employer, Dr. T.T. indicated the Veteran has worked over 28 years as a janitor/groundskeeper at a high school and he had to retire on disability because he was no longer able to carry out his job duties due to problems with his knee. The July 2013 VA knee examination report indicated the Veteran’s knee disability impacted his ability to work because the right knee is likely to severely impact physical labor where heavy lifting and carrying and prolonged walking and standing are required and the left knee is likely to mildly impact physical labor where heavy lifting and carrying and prolonged walking and standing are required. In a September 2013 private disability benefits questionnaire ( DBQ ), Dr. J.T. indicated the Veteran’s knee disabilities impacted his ability to work because he is unable to walk at a normal pace or with normal gait. Due to his right knee he has difficulty rising from a chair and his right knee becomes very painful when riding in a car for a long time. The Veteran is unable to bend his left knee or put weight on it. He cannot walk more than 50 feet and is unable to climb stairs or squat down. Lifting or carrying something heavy makes his right knee “go out of joint.” The August 2020 VA knee examination report indicated the Veteran would have difficulty with work that required prolonged standing and walking due to pain. Based on the record, it is clear the Veteran had to stop working due to his bilateral knee disabilities. The Veteran’s functional impairment of the bilateral knees has resulted in his inability to carry greater than 20 pounds, inability to ride in a car for a prolonged period, inability to perform prolonged standing, and inability to walk for more than 10 minutes. This precludes his ability to perform work in his occupational industry of approximately thirty years as a janitor, groundskeeper, and bus driver. Notably, the Veteran’s only work experience has required physical labor. Moreover, the Veteran has only completed the 12th grade and does not have any additional training or education. Indeed, the Board finds that based on the Veteran’s occupational history, education, and level of skill and training, he does not have the physical and mental ability to perform occupational activities. See 38 C.F.R. § §§ 3.341, 4.16, 4.19. Therefore, the Board concludes that the evidence supports the Veteran’s service-connected bilateral knee disabilities render him unemployable for the entire period on appeal. Thus, extraschedular TDIU is granted for the entire period on appeal. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.