Citation Nr: 21013041 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-19 437 DATE: March 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, for the period on appeal prior to July 3, 2013 is denied. FINDING OF FACT For the period on appeal prior to July 3, 2013, the Veteran’s service-connected disabilities did not meet the schedular criteria for a TDIU rating, and the preponderance of the evidence of record is against a finding that his service-connected disabilities were of such nature and severity as to preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU, to include on an extraschedular basis, for the period on appeal prior to July 3, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to August 1976. The Veteran attended a hearing before the undersigned Veterans Law Judge in February 2016. A transcript of the hearing is of record. This matter was previously remanded by the Board of Veterans’ Appeals (Board) in August 2016, February 2020, and October 2020. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See, Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU, to include on an extraschedular basis, for the period on appeal prior to July 3, 2013 Total disability ratings 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, or 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 or more. See 38 C.F.R. § 4.16 (a). For the period on appeal prior to July 3, 2013, the Veteran was service connected limited extension of the right knee, rated at 20 percent from May 21, 2012; limited flexion of the right knee, rated at 10 percent from May 21, 2012; osteoarthritis of the left knee, rated at 10 percent from May 21, 2012; instability of the left and right knees both rated at 10 percent from May 21, 2012; and a noncompensable rating for bilateral athletes foot. The Veteran has a combined disability rating of 50 percent for the period on appeal from May 21, 2012 to July 3, 2013. Consequently, the Veteran did not meet the schedular rating for a TDIU prior to July 3, 2013. Even when a Veteran does not meet the percentage standards for schedular TDIU, he may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Put differently, the Board may consider whether referral to the Director of Compensation Service (Director) for extraschedular consideration is warranted. In the October 2020 Board decision, the issue of entitlement to a TDIU, on an extraschedular basis, was referred to the Director. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s 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 relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court also held in Ray that 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 the Board to award an extraschedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board “must provide adequate reasons or basis for deviating from its earlier referral decision.” Ray v. Wilkie, at 62; see also Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that the Director does not have nonreviewable discretion and the Board has the jurisdictional authority to review the Director’s extraschedular decisions). The Veteran competed a VA form 21-8940 in April 2019, indicating that he last worked as a truck driver in 1999. The Veteran further reported that he had a high school education, did not attend college, and that he did not have any other additional education or training. The Veteran further stated that he became too disabled to work in May 2000. Notably, a TDIU was granted effective in July 2013. For the period prior to July 2013, the evidence includes an examination for the Veteran’s bilateral knee disabilities in August 2012. Flexion of the Veteran’s right knee was limited to 60 degrees with objective evidence of pain at 45 degrees. Extension of the Veteran’s right knee was limited to 15 degrees. Flexion of the Veteran’s left knee was limited to 80 degrees with objective evidence of pain at 80 degrees. Extension of the Veteran’s left knee was limited to 10 degrees. The Veteran was able to perform repetitive use testing without additional functional loss or reduced range of motion. The Veteran denied flare-ups. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no muscle atrophy. There was no evidence of an impairment of the tibia and/or fibula. The examiner was unable to conduct joint stability testing. The examiner noted that the Veteran did not have a meniscus condition. The Veteran reported regular use of a knee brace, occasional use of crutches, and constant use of a cane. The examiner indicated that the Veteran’s bilateral knee disabilities resulted in functional loss, specifically noting that the Veteran was unable to stand for more than a few minutes, needs cane for ambulation, cannot squat or lift, and cannot stand for an entire hymn at church due to knee pain. As addressed above, the Veteran did not meet the schedular rating for TDIU prior to July 3, 2013. As such, entitlement for a TDIU based on an extraschedular consideration was implicated, and in October 2020, the Board remanded the claim finding the Veteran provided some evidence sufficient to warrant referral to the Director, for extraschedular consideration of a TDIU. In a December 2020 determination, the Director considered the Veteran’s record and concluded that the evidence of record does not demonstrate that the Veteran’s service-connected disabilities, or a combination of the effects of those disabilities, prevented employment prior to July 3, 2013. The Director indicated that the medical evidence shows that the Veteran can stand for only a few minutes, then needs a cane for ambulation and cannot squat or lift. Additionally, the Director noted that the Veteran’s knee disabilities interfere with walking, standing and sitting for extended periods of time. The Director concluded that although there are limitations due to the Veteran’s knee conditions, the preponderance of the evidence does not show that the service-connected condition prohibits the Veteran from obtaining or maintaining gainful employment. The Director stated that “if the Veteran was allowed to alternate between sitting and standing, which would be the case in many less physically demanding jobs, it is clear the Veteran would be expected to handle such positions”. Ultimately, the evidence of record failed to support that the Veteran’s service-connected disabilities caused an exceptional situation that prevented gainful employment prior to July 3, 2013. After a thorough review of the record, the Board finds that the preponderance of the evidence shows that the functional limitations imposed by the Veteran’s service-connected disabilities do not render him unable to secure and maintain substantially gainful employment. As such, TDIU is not warranted on an extraschedular basis. Although the Veteran has mobility issues due to his service-connected knee disabilities, the probative medical evidence of record indicates he was still likely able to secure and maintain substantially gainful employment. Specifically, although the August 2012 examiner noted that the Veteran the Veteran was unable to stand for more than a few minutes, needs cane for ambulation, cannot squat or lift, and cannot stand for an entire hymn at church due to knee pain, the Veteran would likely be able to work in less physically demanding jobs that require only limited activity. He has a high school education and had a steady work history. His mobility issues prior to 2013 are not of the severity to preclude the Veteran from securing or maintaining gainful employment. The Board notes that the Veteran also listed kidney issues on his VA Form 21-8940, as a reason for his unemployability in addition to his knee instability. Service connection is not in effect for a kidney disability. Therefore, any effect from that disability on his employability cannot be considered. Accordingly, the Board agrees with the determination of the Director, that an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b) is not warranted in this case. While there is evidence that the Veteran had limited mobility due to his service-connected disabilities, the preponderance of the evidence is against the claim. The record has not demonstrated that the Veteran’s service-connected disabilities were so severe that they preclude an ability to secure and follow gainful employment when considering his education, training, and occupational experience during the period on appeal prior to July 3, 2013. Therefore, the claim is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, Associate 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.