Citation Nr: 21015834 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-45 123 DATE: March 18, 2021 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The effects of the Veteran’s service-connected knee conditions render him unemployable when considered in light of his educational and vocational background. CONCLUSION OF LAW The criteria for the grant of extraschedular TDIU have been met. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from August 1959 to February 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran testified at a video conference hearing before the undersigned in June 2018. A transcript of the proceeding is of record. This appeal was previously before the Board in October 2108 and December 2020, both times it was remanded. It has now been returned to the Board for appellate adjudication. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to an extraschedular TDIU rating. The Veteran contends that he is entitled to a TDIU due to his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of a service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of “substantially gainful employment.” In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age. 38 C.F.R. §§ 3.341 (a), 4.16(a). Schedular TDIU, i.e., under § 4.16(a), may be assigned in the first instance by the Board or the RO when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. 38 C.F.R. § 4.16 (a). When these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation due to service-connected disability or disabilities, the case must be submitted to the Director, Compensation and Pension Service, for consideration of extraschedular TDIU. 38 C.F.R. § 4.16 (b). Although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board’s ability to review the adjudication of an extraschedular rating once the Director determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). The CAVC has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of 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 and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.) Presently, the Veteran is service-connected for a right knee meniscal tear, rated 20 percent disabling; right knee osteoarthritis with meniscal tear, rated 10 percent disabling; and left knee osteoarthritis, rated 10 percent disabling. Therefore, the combined rating score is 40 percent effective April 1, 2019. The Veteran was denied service connection for hemorrhoids and schizophrenic reaction, paranoid type. During the appeal period, the Veteran reported that he was last employed as a laborer in 1992 and is unable to work as a result of his knee conditions. Prior to his brief employment as a laborer, the Veteran worked as a corrections officer for roughly 14 years. The Board notes that the Veteran medically retired from his position as a corrections officer in 1992 due to his knee conditions and back pain. However, prior to retirement, the Veteran’s employment records indicate that he was reprimanded for missing work for unspecified reasons both during and prior to becoming a corrections officer. In support of this claim, the Veteran submitted a letter from his private physician indicating that, in addition to the Veteran’s advanced age, he is unable to work as a result of a mild cognitive deficit, a lack of marketable job skills, and the need to use a quad cane to ambulate. And, during a June 2018 hearing, the Veteran testified that he suffers from constant knee pain, that has continued to worsen, making it difficult for him to get out of bed most mornings. Additionally, the Veteran’s post service treatment records and lay statements indicate constant complaints of knee pain, including “80-100 percent pain in right knee with every step.” As well as noting that the Veteran has a difficulty ambulating with a slow and unsteady gait, he experiences constant swelling in his knees, and his range of motion in his right knee is grossly limited. Also, the Veteran contends that his knee pain impacts his ability to sleep. In May 2017, the Veteran was provided a VA examination. The examiner determined that the Veteran’s knee conditions impact his ability to run, jump, and perform high impact activities. The examiner stated that the Veteran’s knee conditions would affect prolonged standing and walking but would not affect low impact or sedentary activities. The examiner further noted that the Veteran experiences pain in both knees when weight bearing and needs a cane to walk. The examiner also noted that the Veteran was released from active duty because of a knee injury. On a June 2019 private DBQ, the Veteran’s physician indicated that they were unable to determine if there would be an occupational impact as a result of the Veteran’s knee conditions without additional testing. However, the examiner noted that the Veteran experiences limited and weakened movement, excess fatigability, incoordination, pain, and swelling in the right knee. On October 2019, a subsequent VA examination was conducted, where the examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination. During the examination, the Veteran stated that he experiences constant pain, avoids applying pressure on his right knee, experiences pain in his left knee in the evenings, and suffers from decreased range of motion in both knees. Additionally, it was noted that the Veteran uses a cane regularly to walk. The examiner determined that the Veteran’s knee conditions impact his ability to work in that he would not be able to kneel, squat, stand, or walk for prolonged periods. Lastly, upon review of the record, the Director of Compensation Service determined the cumulative medical evidence does not support an extra-schedular TDIU entitlement based on service-connected knee conditions. Further opining, “while the Veteran has physical limitations preventing him from performing sustained, physically demanding work, there is evidence he can still do substantial work activity, including in a sedentary or semi-sedentary work environment.” And that the evidence does not show that the Veteran’s service-connected disabilities, considered independently of other non-service-connected disabilities, render him unable to secure or follow a substantially gainful occupation. Upon review of the evidence of record and after resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected disabilities prevent him from securing substantial gainful employment and an extraschedular TDIU is warranted. The Board has been presented with positive and negative evidence regarding the impact the Veteran’s bilateral knee conditions have had on his employability. The Veteran only has a high school education with no additional training. The record demonstrates that the Veteran worked as a corrections officer for over a decade but had to retire from the position due to his knee pain, and he was removed from active military service because of a knee injury. Although the decision issued by the Director of Compensation and Pension noted that the evidence does not show that the Veteran’s service-connected disabilities, considered independently of other non-service-connected disabilities, render him unable to secure or follow a substantially gainful occupation., there is a significant amount of probative evidence that the Veteran’s service-connected disabilities result in a level of functional impairment that would affect any employment. Specifically, the October 2019 VA examination, where it was determined that the Veteran’s knee conditions would impact his ability to work in that he would not be able to kneel, squat, stand, or walk for prolonged periods, as well as the Veteran’s lay statements that he experiences constant right knee pain. Additionally, for over a decade, the Veteran worked as a corrections officer. The Board finds that such vocation requires the ability to work on one’s feet for long periods and to react quickly to evolving situations. Both the medical and lay evidence of record establishes that the Veteran’s knee conditions significantly impair his ability to simply stand for long periods of time. Further, as he has done such work for a significant portion of his life, it is unlikely that he would be able to obtain substantially gainful employment in another line of work because many of the skills he gained are not marketable, as stated in the September 2015 private medical physician opinion. The record does not reflect any competent evidence establishing that the Veteran has sufficient vocational and educational experience to secure a sedentary vocation which would allow him to earn above poverty level. The Board recognizes that the applicable statutory and regulatory provisions “place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). However, opinions provided by in the September 2015 private physician opinion and October 2019 VA examination hold substantial weight as these professionals are trained to evaluate disabilities and how they impact an individual’s ability to move and work. Given the substantial medical and lay evidence supporting the finding that the Veteran experiences limited mobility and constant pain due to his knee conditions, and his lack of additional training or education that might have led to an alternative career which can be deemed “substantially gainful employment,” the lack of identification of any occupation which the Veteran could perform which provides substantially gainful employment, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to an extraschedular grant of TDIU for his service-connected disabilities. The evidence is at least approximately evenly balanced as to whether the Veteran has been unable to follow a substantially gainful occupation as a result of service-connected disabilities. By law, the doubt resulting from this equipoise in the evidence is resolved in favor of the Veteran. See 38 U.S.C. § 5107(b). The Board will therefore grant extraschedular TDIU. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). (“By requiring only an ‘approximate balance of positive and negative evidence’. . ., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding . . . benefits.”). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.