Citation Nr: 21015818 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 09-33 767 DATE: March 18, 2021 ORDER Prior to December 4, 2019, a total disability rating based on individual unemployability (TDIU) is denied. From December 4, 2019, a TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. From May 15, 2012 until July 1, 2013, the Veteran was assigned a temporary 100 percent rating for convalescence after his total right knee replacement. 2. The schedular rating criteria for a TDIU were met from July 1, 2013 and not before. 3. Prior to December 4, 2019, the competent and credible evidence does not establish that the Veteran’s service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment. 4. From December 4, 2019, competent and credible evidence indicates that the Veteran’s service-connected disabilities, primarily his right knee and low back conditions, have prevented him from being able to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU were met December 4, 2019, but not before. 38 U.S.C. § 1155; 38 C.F.R. § 4.16 REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1967 to August 1970. He had a period of active duty for training (ACDUTRA) from August 1988 to February 1989, and additional Army National Guard (ARNG) inactive duty training (INACDUTRA). This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2009, rating decision notification. In April 2011, a videoconference hearing was held; a transcript is of the record. During the hearing, a TDIU claim was raised by the Veteran and then added as an issue/claim on appeal in a January 2012 decision previously before the Board. See Rice v Shinseki, 22 Vet. App. 447(2009). The January 2012 Board decision adjudicated an increase rating right knee claim and remanded the TDIU claim for further development, to include the Veteran completing a TDIU application, and VA examinations in order to determine the Veteran’s ability to maintain substantial gainful employment with his service-connected disabilities. As directed in the January 2012 Board remand, the Veteran submitted a VA Form 21-8940 Veteran’s Application for increased Compensation Based on Unemployability and dated in November 2012. Ultimately, a July 2013 Supplemental Statement of the Case (SSOC) determination denied the Veteran’s TDIU claim. Unfortunately, the Veteran’s TDIU issue remanded to the RO and pending on appeal before the Board from the January 2012 decision, had not been returned to the Board and has remained pending on appeal. Dated in November 2020, the Veteran again submitted a TDIU application (VA Form 21-8940). The Board apologizes for this delay in adjudication of his pending TDIU claim and any inconvenience caused. However, as evidenced below, the Board finds that the Veteran is not prejudiced by the delay. The VA examinations are also of record and the Board is satisfied that there was at the very least substantial compliance with its January 2012 Board remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999), and the matter has returned to the Board for appellate review. Since the July 2013 Supplemental Statement of the Case (SSOC), additional private and VA medical evidence have been added to the file, to include evidence not relevant to his TDIU appeal and VA examinations in support of the Veteran’s TDIU claim as of December 4, 2019. In February 2019, the Veteran’s representative submitted a statement waiving regional office consideration of the record and additional evidence submitted on behalf of the Veteran. As such, the Board finds that in this case, a remand is not warranted. TDIU The Veteran contends that his service-connected disabilities prevented him from maintaining gainful employment both sedentary and labor intensive. See November 2012 and subsequent November 2020 TDIU application VA Forms 21-8940. In addition, in an undated written statement, and again at his April 2011 Board hearing the Veteran indicated that he retired [early] due to his disability. While the Veteran was afforded a VA examination in July 2006, employability or the functional impact of his service-connected disabilities on his ability to maintain substantial gainful employment was not addressed and the Board previously remanded this claim in the January 2012 decision. 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 disability or disabilities. For schedular consideration, a Veteran must meet one of the following conditions: 1) if he has just one service-connected disability, it must be rated at 60 percent or more, or 2) if he has more than one service-connected disability, at least one must be rated at 40 percent or more with an additional service-connected disability sufficient to bring the combined rating to 70 percent or more. See 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 had the following service-connected disabilities and corresponding ratings for them: total right knee replacement (100 percent from May 15, 2012; 30 percent from July 1, 2013); Right Knee Osteoarthritis under diagnostic code 5258 previously DC 5003 (20 percent from September 12, 2006 to May 15, 2012); Diabetes (20 percent from February 6, 2014); Peripheral Neuropathy of the Right and left Upper extremity (20 percent from July 17, 2017 respectfully); Low back conditions (10 percent from December 23, 2011 and 20 percent from December 4, 2019); Acne, (10 percent from August 27, 1970); Peripheral Neuropathy of the Right and left Lower extremity associated with diabetes (10 percent from December 23, 2011 respectfully) Fungus Infection (0 percent from August 27, 1970); Gastro-Intestinal Tumor (noncompensably disabling from April 14, 2014). Consequently, pursuant to a bilateral factor, the ratings for the Veteran’s service-connected disabilities meet the criteria for schedular consideration of entitlement to a TDIU from the period of July 1, 2013, when the combined evaluation was 60 percent and rated as one collective disability, to include total knee replacement and bilateral lower extremity radiculopathy with peripheral neuropathy associated with diabetes conditions. See 38 C.F.R. § 4.25, Table 1; see also 38 C.F.R. § 4.26. 56.1, 38 C.F.R. § 4.25. However, as will be discussed, there is no competent and credible evidence that the Veteran was not substantially gainfully employed during the period from July 1, 2013 to December 4, 2019 during which time he was eligible for schedular consideration. 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. 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. The Board finds that the evidence warrants the conclusion that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities from December 4, 2019, the date of the Veteran’s most recent knee/lower leg and low back VA examination/opinion, but not before. Initially, in a precedential decision, the 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.” In Withers v. Wilkie, 30 Vet. App. 139 (2018), the Court declined to define the term. If the Board relies on the term “sedentary work” (as in this case) in making a determination of entitlement to TDIU, the Board must explain the meaning derived from that concept. 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. While not binding on VA, the Board takes notice of Social Security Administration’s (SSA) definition of sedentary 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. At his April 2011 Board hearing, the Veteran testified that he retired due to his service-connected disabilities and that he most recently worked part-time at the United States Census Bureau. In his November 2012 and subsequent 2020 application for TDIU, the Veteran provided the names and dates of his employment through 2010 and contends that he has not sought employment since he sustained a knee injury in 2012. The Veteran listed employment with Homeland Security (1978 to 2005), Blanchard Associates (2007 to 2009), and the U.S. Census Bureau (2009 to 2010). VA sent the listed employers, to include the Office of Personnel Management (OPM) at least two requests for employer information. In addition, the Veteran was sent numerous requests to contact his former employer(s) to obtain information regarding his salary and reason for termination. Unfortunately, although requested, he did not provide any additional employment information. In addition, the VA informed the Veteran that his employer information from Homeland Security, Blanchard Associates, and the U.S. Census Bureau could not be located, not available and all efforts are exhausted. However, OPM provided a document dated in December 2020, which reflects that the Veteran had been retired from Homeland Security as a Senior Special Agent since August 2005 and currently receives retirement annuity monthly income. The Veteran was afforded VA examinations for his service-connected disabilities in 2012, 2014 and 2017, to include his diabetes, upper/lower peripheral neuropathy GERD, skin, right knee and low back disabilities. The 2012 examiner considered the Veteran’s service-connected disabilities together, and determined that at worst the Veteran’s progression of his service-connected degenerative arthritis right knee dictates that he is able to do sedentary work and no physical work at all because of the need of an assistive device to ambulate. In addition, the 2012 right knee examiner noted that the Veteran is massively obese, clinically short of breath and known to have emphysema, and heart conditions. The Veteran is not service connected for these conditions. A January 2015 VA treatment note indicated that the Veteran lives alone, not working, drives, has a master’s degree and smokes a pack of cigarettes a day. Upon review of private treatment records that show treatment for service-connected and nonservice connected disabilities, these records are silent for evidence which shows that the Veteran is unable to work because of his service-connected conditions. In December 2019, the Veteran was afforded another knee/lower leg and low back VA examination. VA examination reports dated in December 11, 2019 for the Veteran’s service-connected right knee disability and December 4, 2019 for his low back disability both reflect that these disabilities have a functional impact on the Veteran’s ability to work, specifically due to findings of gait dysfunction. Of note, all VA examinations prior to the December 2019 examinations found the Veteran’s service-connected disabilities had no functional impact on the Veteran’s ability to work or at worse, the Veteran was able to maintain substantial gainful employment only if the work was sedentary as defined above. However, the December 2019, right knee examiner noted that the Veteran had additional knee factors contributing to his right knee service-connected disability to now include swelling, disturbance of locomotion, interference with sitting, and interference with standing. The examiner concluded that the Veteran’s gait dysfunction has a functional impact on his ability to perform any type of occupational task such as standing, walking, lifting, and sitting. As such, the Board finds that as of the December 4, 2019 low back VA examination and not before, the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities primarily his right knee and lower back. After weighing all the evidence prior to the December 4, 2019 VA examinations, the Board finds the greatest probative value in the 2012, 2014 and 2017 VA examinations and opinions. The 2012 VA examiners reported that the Veteran is capable of sedentary work with his service-connected right knee disability and subsequent examinations reported no functional impact on the Veteran’s ability to work. Here, the 2012, 2014 and 2017 VA examiners reviewed the file and examined the Veteran prior to concluding that the Veteran’s service-connected disabilities had no impact on his ability to work (2012, 2014, 2017) or at least the Veteran could perform sedentary work (2012). Moreover, there is no opinion to the contrary until December 4, 2019. In consideration of the Veteran’s education, training, and work history. the record indicates that the Veteran has a master’s degree and past occupations listed on his TDIU application after his 2005 retirement include employment at 30 and 35 hours per week respectively. 38 C.F.R. § 4.16. Furthermore, the Veteran testified in April 2011 that after retirement he only worked part-time for the U.S. Census Bureau as a contractor, he could work sitting, which support’s the 2012 VA opinion that the Veteran was at least capable of sedentary work because it involved sitting most of the time, as defined by SSA above. In addition, the Veterans 2020 TDIU application shows that he worked 35 hours per week at the United State Census Bureau, and not part-time as stated during his Board testimony. Of note, the Veteran was sent at least two requests from VA for employer information to support his claim that he retired due to his service-connected disabilities and the reason/date he left employment. The Veteran did not comply, and upon review, there is no medical evidence of record supporting the Veteran’s claim that he was unable to maintain gainful employment until December 4, 2019. As discussed above, the Board gives greater weight to the 2012, 2014, and 2017 VA opinions supporting that the Veteran’s service-connected disabilities, had no functional impact on his ability to work or at least, capable of sedentary work with his service-connected disabilities prior to December 4, 2019. As such, there is evidence of record to suggest that any relevant periods of the Veteran’s unemployability prior to December 2019, may be due to disabilities for which he has not been granted service connection, including but not limited to treatment for heart condition, sleep apnea, chronic, obstructive pulmonary disease, emphysema, hypertension, hyperlipidemia, and shoulder pain. Consideration has been given to the Veteran’s testimony, and statements asserting that he is unable to work due to his service-connected disabilities. The Veteran is considered competent to describe symptoms of his service- connected disabilities as they are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in adjudicating this claim, the Board must assess not only competency of the Veteran’s statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). While the Board does not wish to minimize the nature and extent of the Veteran and his spouse’s statements and overall disability, but 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 prior to December 4, 2019. Although they produced some impairment, the evidence does not reflect gainful employment was precluded solely due to the Veteran’s service-connected disabilities prior to that date. The Board also acknowledges that the Veteran has been found to have other nonservice-connected disabilities during the relevant appeal period, however, the December 2019 VA examiner specifically examined the Veteran’s functional limitations from his service-connected right knee and low back disabilities and concluded that his gait disfunction had a functional impact on his ability to work. Moreover, the December 2019 right knee examiner specifically found that his service-connected right knee disability precluded him from any type of occupational task. As such, the Veteran would be unable to even maintain a sedentary job as defined by SSA above after December 4, 2019. Accordingly, TDIU is granted from December 4, 2019, the date of the VA examination and not before. Carole R. Kammel Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michelle Franklin, 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.