Citation Nr: 21015837 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 10-05 550 DATE: March 18, 2021 ORDER Entitlement to a total rating based on individual unemployment (TDIU) on an extraschedular basis is denied. FINDING OF FACT Beginning January 1, 2009 through March 7, 2018, 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, beginning January 1, 2009 through March 7, 2018, to include on an extraschedular basis, 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 June 1972 through June 1976. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from February 2009, May 2009, and May 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided a hearing before the undersigned Veterans Law Judge in June 2011. In December 2012, January 2018, and November 2019, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. 1. Entitlement to a total rating based on individual unemployment (TDIU) on an extraschedular basis As a preliminary matter, in its December 2012 remand, the Board took jurisdiction of the TDIU claim as it was part and parcel of the Veteran’s then-pending appeal of the claims for a higher rating for his bilateral knee disabilities. That appeal stemmed from an August 2008 claim. Significantly, a 100 percent rating had been in effect from June 2008 to January 2009. However, from January 1, 2009 until March 7, 2018, the Veteran did not meet the criteria for consideration of schedular TDIU. Effective March 7, 2018, the Veteran was awarded service connection for a depressive disorder with a 100 percent disability rating. He was also awarded special monthly compensation (SMC) from September 4, 2018, which is the date he meet the qualifications for SMC. As the Veteran did not meet the criteria for TDIU prior to March 7, 2018, the Veteran is only eligible for consideration of extraschedular TDIU under 38C.F.R. §4.16(b) from January 1, 2009 until March 7, 2018. Total disability rating 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). During the pendency of this appeal, the Veteran has been service-connected for right knee degenerative arthritis, with a 10 percent rating from January 1, 2009 through June 8, 2011, and 30 percent from June 8, 2011; status-post operative chondromalacia, left knee, with a 10 percent rating; right knee instability, with a 10 percent rating from June 8, 2011; and hearing loss, with a noncompensable rating. His combined rating was 20 percent from January 1, 2009, and 50 percent from June 8, 2011. Consequently, between January 1, 2009 through March 7, 2018, the Veteran did not meet the schedular rating for a TDIU. 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 January 2019 Board decision, the issue of entitlement to a TDIU, between January 1, 2009 through March 7, 2018, on an extraschedular basis, was referred to the Director. The Department of Veterans Affairs (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 submitted to a January 2009 VA examination for his increased rating claims. He endorsed pain in his knees that was generally a 7 on a ten-point scale when present and a 3 or 4 when at rest. At the time, he reported working as a clerk. He indicated that his knee pain affected the performance of his job “somewhat”, in that he had pain with prolonged walking or standing, but was able to do most sedentary type things. By October 2009, the Veteran reported increasing pain in his right knee and was having difficulty getting up from a chair. In February 2010, the Veteran’s physician documented in correspondence that the Veteran had current symptoms of chronic pain, swelling, feeling of giveaway, popping, and locking of the knees. It was not expected that the Veteran would obtain full strength of the right knee, which would cause difficulty using stairs, difficulty sitting for long periods of time, and difficulty squatting and standing up from a squatting position. At the June 2011 hearing, the Veteran testified that he had worked for the US Postal Office where he changed job duties several times due to his service-connected knee disabilities. He detailed that his last job was as a parts clerk. He could manage such work because it was mostly a sedentary job. At a September 2014 VA examination, the Veteran had full strength in his knees. He indicated that he used a cane regularly and a walker occasionally. The examiner determined that his service-connected disabilities limits the amount of ambulation he could do and confines him to sedentary work. In December 2014, a VA examiner determined that his left ear hearing loss would not preclude the Veteran’s ability to gain and maintain employment, as he had clinically normal hearing sensitivity. In April 2016, the Veteran submitted to a general VA examination. The examiner opined that the Veteran did not have any service connected or non-service-connected general medical problems that would limit seeking or maintaining gainful employment. Notably, his knees were not examined. In November 2016, the Veteran submitted a TDIU application. He indicated that he became too disabled to work in June 2008. At the time, he worked as a tool and parts clerk with US Postal Service. For the past 12 months, he had earned $35,000. Since becoming too disabled to work, he worked as a pastor. Regarding education, he had completed college and obtained a doctorate degree in Theology in 2006. Employment information was received from the US Post Office in March 2018, which indicated that the Veteran’s employment had ended in October 2009. The Veteran had retired, and no disabilities were known at the time of his retirement. In November 2020, the Director of Compensation Service (Director) considered the Veteran’s claim for extraschedular TDIU. The report cited to VA examinations in February and April 2019, where there was an indication from the Veteran that he was capable of performing a sitting job with minimal standing and walking. Further, the April 2019 VA examiner had opined that his bilateral knee disability would require him to do minimal walking, but there was no indication in any of the examinations that he would be incapable of maintaining gainful employment. The Director concluded that the record confirmed complications with the Veteran’s knees but did not support that the Veteran is incapable of gainful employment based on his knees alone. Further, the Director found that evidence supports that the Veteran could maintain a gainful occupation in an office setting and has attained a higher level of education that would allow attainment of such work. The Veteran’s statements did not support that he is incapable of maintaining gainful employment in an office setting in which he is not required to walk or stand for long periods. A December 2020 advisory opinion from the Director further detailed the evidence of record, which noted that the Veteran’s knee pain lessened with pain medication and a knee brace or stabilizer. His left ear hearing loss was mild. The Director found these disabilities do not represent an exceptional or unusual disability picture that would support an extraschedular grant of individual unemployability benefits. Further, the overall evidence fails to support that any of the service-connected disabilities, or a combination of the effects of those disabilities prevent employment. 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 did not render him unable to perform the mental or physical tasks necessary to follow a substantially gainful occupation between January 1, 2009 through March 7, 2018. As such, TDIU is not warranted on an extraschedular basis. The Board does not dispute that the Veteran experienced some occupational impairment due to his service-connected disabilities during the relevant time periods on appeal, and that is why it referred the case to the Director for further development. Evidence shows complaints of physical limitations resulting from his service-connected disabilities. However, the Board finds that such impairment was adequately compensated by the assigned schedular ratings. Loss of industrial capacity is the principal factor in assigning disability ratings. See 38 C.F.R. §§ 3.321 (a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: “Generally, the degrees of disability specified 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.” See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board has considered entitlement to a TDIU based only upon the Veteran’s disabilities that were service-connected, between January 1, 2009 through March 7, 2018, and finds that although they may have impacted his ability to obtain and maintain employment in a manual labor field, they did not prevent him from securing or following gainful employment. The Veteran has training well beyond high school, has obtained a doctorate degree, and has worked as a pastor after not being able to be in a physical job. While a heavy physical labor position would have been precluded, given the Veteran’s education and experience, he would have been qualified for a position that is less physically demanding. His service-connected disabilities would not preclude this type of employment. Relatedly, the Veteran has admitted to the ability to perform work that could be performed while seated and does not require prolonged standing and walking. In addition, such a position would provide income above the poverty level. The Veteran has advanced degrees. Additionally, the Veteran was not service-connected for any mental disabilities during the relevant time period; thus, it not expected that he would have mental limitations in the performance of his work duties in these fields. Given the above, 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 between January 1, 2009 through March 7, 2018. While it appeared that some evidence pointed to unemployability at the time of the remand, as explained above, the preponderance of the evidence is against the claim. The record has not demonstrated that the Veteran’s service-connected disabilities are so severe that they preclude an ability to secure and follow gainful employment, when considering his education, training, and occupational experience. The claim is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.