Citation Nr: 21012546 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 13-18 465 DATE: March 4, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The competent evidence of record does not show that the Veteran was unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1962 to June 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA). In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. This case was remanded in August 2017, March 2019, and November 2020 for further development. Entitlement to a TDIU is denied. The Veteran contends that his service-connected disabilities render him unemployable. A veteran may be awarded TDIU benefits if he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). VA may consider the level of education, special training, and previous work experience in making this determination, but may not consider a veteran’s age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. (1991). Medical evidence describing the effect of each disorder on a veteran’s occupational functioning is crucial to permit the Board to arrive at an assessment of employability. 38 C.F.R. § 4.1. However, the question of whether a veteran’s service-connected disabilities are of sufficient severity to produce unemployability is ultimately the Board’s determination to make. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 C.F.R. § 4.16(a) as support for the conclusion that the applicable statutory and regulatory provisions “place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). Therefore, the Board will review the medical evidence in the context of the other evidence of record prior to reaching an ultimate conclusion regarding his employability. TDIU may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, a veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). For the purpose of determining entitlement to a schedular TDIU, disabilities resulting from a common etiology or resulting from a single accident are considered as one disability. Id. Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director, Compensation Service (Director) for extraschedular consideration of a TDIU is warranted if a veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities.  38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not sufficient. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. See 38 C.F.R. § 4.16(a); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Significantly, in determining whether a veteran is entitled to a TDIU, neither the veteran’s nonservice-connected disabilities nor advancing age may be taken into consideration. 38 C.F.R. § 4.19. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: (1) a veteran’s history, education, skill, and training; (2) whether a 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, with factors including, but not limited to, a veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether a veteran has the mental ability to perform the activities required by the occupation at issue, with relevant factors including, but not limited to, a 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). The Veteran maintains that his service-connected disabilities render him unemployable and that he had to retire from his job in 2006 because he was no longer able to perform his job. See e.g. April 2010 statement. Service connection is currently in effect for osteoarthritis of the right ankle and bilateral knees. The threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16(a) are not met because the Veteran does not have one service-connected disability rated 40 percent or higher and a combined rating percentage for all the service-connected disabilities of 70 percent or higher for this period. See January 2019 Rating Code Sheet. The Veteran is a recipient of Social Security Administration (SSA) disability benefits. SSA adjudged the Veteran disabled as of February 2006 as a result of osteoarthritis and diabetes mellitus. Work history from the SSA shows the Veteran last performed duties as a transit field technician, which required prolonged periods of walking, standing, kneeling, and crouching. The Veteran reported limits with these activities. In his May 2006 application for SSA benefits, the Veteran reported being hospitalized for a right leg/hip injury. During this time, he learned he had arthritis in both his knees and left ankle. He retired in February 2006. When asked to describe his pain symptoms, he reported severe pain in both knees and his left ankle when he sat or stood for too long. He also reported back pain after standing for too long. Standing, walking, and sitting caused him to experience pain. He stopped working because his knees and hips were hurting all the time. He confirmed completing two years of college in 1962. He did not complete any type of special job training, trade, or vocational school. The examiner noted that the Veteran walked slowly to the interviewing area and could not sit or stand for too long during the interview. During his June 2008 physical residual functional capacity assessment, the Veteran alleged pain in the right hip, knees, and ankles. He needed a cane for ambulation. He was not able to heel/toe walk or squat. The examiner noted evidence of chronic venostatic peripheral vascular disease and right shoulder, right hip, bilateral knee, and left ankle issues that created limits on standing/walking, some lifting limits, and limits on lower extremity push/pull. The examiner determined that the Veteran could stand and/or walk with normal breaks for a total of at least two hours, and sit for about six hours, in an eight-hour workday; he should avoid use of left foot controls, as well as balancing, stooping, kneeling, crouching, and crawling due to osteoarthritis of the hips, knees, and left ankle. The combination of impairments impacted his physical/mental functional capacity. The examiner determined that his past relevant work was usually performed in the national economy and would be ruled out due to limitations since the Veteran required sedentary employment. He was found to be disabled because his past work was semi-skilled/skilled but not transferable. During a June 2008 SSA medical evaluation, tenderness was noted in the right ankle, but range of motion was normal. Range of motion in the left ankle was decreased “about 50%”; x-rays revealed a normal right ankle but osteoarthritis of the left ankle. Diabetes and osteoarthritis of the right hip, bilateral knees, and left ankle were diagnosed. The physician noted limitations in lifting, pushing, pulling, walking, standing, and climbing. There were no limitations related to hand dexterity or strength, and no communicative limitations with regard to speech or hearing or emotional impairment in functioning within work/social environment. In April 2010 correspondence, the Veteran reported that he submitted a claim for injuries, including his ankles, shoulders, right hip, and knees. He reported that these injuries have left him disabled, unable to sit or stand for long periods of time. After several tests, he was diagnosed with a “hip condition, left leg, left ankle, and bilateral shoulder condition (sic), all service connected (sic).” (The Board again points out that service connection has only been granted for bilateral knee and right ankle disabilities.) He was forced to retire in 2006 because his body was “unable to perform anymore” and because his injuries affected his performance. In his July 2010 TDIU application, the Veteran identified ankle, knee, hip, and shoulder problems as preventing his ability to secure or follow substantially gainful employment. On his application, he indicated that he completed one year of high school. In his January 2020 TDIU application, he identified bad knees, ankles, hips, and shoulders as the disabilities preventing him from securing or following substantially gainful occupation. He explained that he cannot sit or stand because his legs and feet swell. On this application, he reported completing two years of college. During his August 2010 VA joints examination, bilateral ankle soft tissue impingement and osteoarthritis of the right knee were diagnosed. Precipitating factors were walking/standing, squats, stairs, lifting/carrying; he had partial relief with rest and activity modification. The Veteran was unable to stand for more than a few minutes and unable to walk more than a few yards. He used a brace and a wheelchair. The Veteran stated that he was unemployed due to bilateral lower extremity pain. The examiner determined that these disabilities (including his nonservice-connected foot disability) caused significant effects on the Veteran’s usual occupation and led to decreased mobility and problems with lifting and carrying, as well as pain. The resulting work problems led to being assigned different duties, increased tardiness, and increased absenteeism. The examiner explained that the Veteran’s disability related to his musculoskeletal complaints would prohibit work duties that demand strenuous physical exertion or are dominated by prolonged standing, walking, or sitting without breaks, as well as lifting or carrying. Examples would include construction, warehouse work, cargo loading, truck driving, or mechanic. His disability should not limit his ability to perform sedentary tasks that are common in clerical and administrative positions. The September 2010 VA nose and sinus examiner noted that the Veteran was unemployed based on age/duration of work and physical problems, including “legs/hip condition.” During his April 2017 Board hearing, the Veteran testified that his hips bothered him “every now and then” and that there were some days that he “couldn’t move” while working. He continued to explain that he would get off of work and his “hip was hurting me so bad that I couldn’t ease in and out the car and that’s what made me retire.” He continued to explain that his body was too tired to do any more driving for work. He would have to sit down and relax, “get me together, get my legs circulating better, so I could drive home.” He did not look for additional employment because he could not sit or stand for too long. The November 2017 VA hip examiner opined that the Veteran’s nonservice-connected hip disability impacted his ability to perform any type of occupational task; the Veteran could only perform light physical and sedentary tasks due to his diagnosis. During his November 2017 VA shoulder examination, the examiner determined that the Veteran was unable to hold objects to the lateral side and overhead due to restriction and weakness. He was able to perform light physical and sedentary activities. During his November 2017 VA knee examination, the Veteran reported experiencing knee pain with running or stepping on both knees. He experienced flare-ups if walking and doing any sudden movements or turns. He also reported an inability to run. The examiner determined that the Veteran could only perform light physical and sedentary tasks due to his knee disabilities. During his November 2017 VA ankle examination, the Veteran reported experiencing flare-ups/swelling of the ankle if he incorrectly stepped off a curb, and difficulty walking. The examiner determined that the abnormal range of motion of the right ankle was caused by stiffness in plantar flexion and dorsiflexion, which limited his ability to walk with the right ankle. The examiner also noted a lack of flexibility due to the Veteran’s age and that his range of motion was also limited by body habitus. Additional factors contributing to his disability included swelling in both ankles, decreased bilateral ankle manual muscle testing, interference with sitting that caused swelling, and interference with prolonged standing. The Veteran’s diabetes was also affecting his ankle swelling. The examiner noted difficulty with prolonged standing and walking and opined that the Veteran could perform light physical and sedentary activities. During his March 2020 VA ankle examination, the Veteran stated that his bilateral ankles do not hurt most days because he takes Tylenol in the morning. No functional impact was noted, and the Veteran’s ankle condition did not impact his ability to perform any type of occupational work. The examiner also noted edema of the feet and ankles due to congestive heart failure and peripheral venous insufficiency; as the extent of edema fluctuates, so too would range of motion of the ankles. A March 2020 VA examiner noted that the Veteran does less activity than he would otherwise do because of his bilateral knee and right ankle disabilities. An April 2020 VA treatment record shows that the Veteran complained of right big toe pain. He had a history of ischemic cardiomyopathy, severe peripheral vascular disease, hypertension, diabetes, and liver cirrhosis. His ambulation was reduced, and it was noted that he was unable to have a normal job due to “significant disease.” Because the Veteran’s past work experience involved prolonged periods of walking, standing, kneeling, and crouching and required some physical exertion involving the joints and/or muscles affected by the knees and right ankle, the Board referred the TDIU issue to the Director for consideration of the assignment of TDIU under 38 C.F.R. § 4.16(b). In a December 2020 advisory opinion, the Director stated that it is “well known that the American workplace has had a dramatic shift in the labor force over the last several decades” and that it has “long been known that Americans generally have less strenuous jobs compared to those of years ago.” A person need not be college educated or highly skilled to be productive in today’s work environment. Here, the Director noted that the Veteran has multiple years of college education evidencing “an aptitude shown to be able to learn new skills.” The Director noted that the Veteran worked as a monitor for Dade County for 20 years and worked 40 hours a week. Throughout the appeal, he reported being unable to work due to ankle, knee, shoulder, hip, and feet problems. However, service connection has not been granted for his left ankle, hips, shoulder, or feet. After considering all relevant evidence, including his training, education, and work history, the Director determined that “the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities (by themselves) support an exceptional situation that prevents gainful employment.” After considering the evidence above, the Board finds that the Veteran’s service-connected disabilities, considered either together or separately, did not prevent him from securing or following substantially gainful employment. The Veteran has repeatedly said that he is unable to work due to his ankles, shoulders, hips, and knees. Service connection has been granted only with respect to the right ankle and bilateral knees. The Board attaches significant probative weight to the Veteran’s own report that his hip disability, which is not service-connected and thus cannot be considered, was the reason he retired from his last employment. See April 2017 Board hearing testimony. Additionally, SSA found the Veteran disabled as of February 2006 as a result of osteoarthritis and diabetes mellitus. However, during the SSA workup, only osteoarthritis of the right hip, bilateral knees, and left ankle were diagnosed; there was no right ankle osteoarthritis. The physician noted limitations in lifting, pushing, pulling, walking, standing, and climbing but found no limitations related to hand dexterity or strength and no communicative limitations with regard to speech or hearing or emotional impairment in functioning within work/social environment. The August 2010 VA examiner noted the Veteran’s ankle and knee disabilities and the functional impacts resulting therefrom, and concluded that such disabilities would prohibit work duties that demand strenuous physical exertion or are dominated by prolonged standing, walking, or sitting without breaks, as well as lifting or carrying, but that such should not limit his ability to perform sedentary tasks that are common in clerical and administrative positions. The November 2017 VA knee and ankle examiner reviewed the medical evidence of record, and interviewed the Veteran, concluding that the Veteran could perform light physical and sedentary activities. Significantly, the Veteran denied any functional impairment during his March 2020 VA ankle examination, although the examiner noted that the Veteran does less activity than he would otherwise do because of his bilateral knee and right ankle disabilities. Although the Veteran also reported being unable to work specifically due to his bilateral knee and right ankle disabilities, the evidence shows he is still capable of performing sedentary activities. The Veteran completed two years of college and worked for 20 years in the same employment. The Board finds this evidence shows that he is more than an unskilled laborer. Thus, his educational and work history do not weigh in favor of a finding that he would be unable to secure and maintain substantially gainful occupation when considering his service-connected disabilities. The determination of whether a Veteran is unable to secure or follow a substantially gainful occupation is a legal one, to be undertaken on a case-by-case basis. See Withers v. Wilkie, 30 Vet. App. 139 (2018) (holding the meaning and relevance of the term sedentary work will have to be discerned on a case-by-case basis from the medical and lay evidence presented and considering each Veteran’s education, training, and work history). The ultimate issue of whether TDIU should be awarded is not a medical issue but is a determination for the adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). Here, the central inquiry is whether the Veteran’s service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board acknowledges the Veteran experiences limitations as a result of his service-connected disabilities; however, the Board finds the totality of the evidence weighs against the claim. While physical labor is prohibited, there is nothing in the record that suggests that all sedentary employment is precluded due to service-connected disabilities alone. Sedentary employment is the common meaning in society of non-physical, white collar, office-type work. While the Board does not doubt that the Veteran’s service-connected disabilities have a significant impact on his employability, the weight of the evidence does not support his contention that his service-connected disabilities were of such severity so as to preclude his participation in any form of substantially gainful employment. Because the preponderance of the evidence reflects that the Veteran’s service-connected bilateral knee and right ankle disabilities, considered together and separately, did not prevent him from securing or following substantially gainful occupation, entitlement to TDIU must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Matta, 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.