Citation Nr: 21015951 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 08-13 355 DATE: March 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran has been employed during the appeal period and is not shown to be unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1993 to January 1994. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a December 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) regarding ratings for the Veteran’s service-connected right knee. In June 2011, a videoconference hearing was held before the undersigned. In March 2016, the Board denied the Veteran’s claims for an increased rating for his right knee. In its decision, the Board determined that the matter of entitlement to a TDIU rating was not raised by the record based on evidence that the Veteran was working full time and a March 2014 VA examination that determined the Veteran’s right knee instability would have no functional impairment on his employment. The Veteran then appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2017, pursuant to a Joint Motion for Partial Remand (Joint Motion), the parties agreed a remand was warranted, among other reasons, for the Board to reconcile the evidence in its determination that the issue of entitlement to a TDIU was not raised and to provide an adequate statement of reasons and bases for its determination. In August 2017, the Board adjudicated the Veteran’s claim seeking an increased evaluation for service-connected instability of the right knee and a separate compensable evaluation for dislocated semilunar cartilage of the right knee. The Board also determined that, at no time during the period on appeal, had the Veteran ever alleged that he was unable to maintain or sustain substantially gainful employment due solely to his right knee instability disability and therefore the issue of entitlement to TDIU was not reasonably raised by the record. The Veteran appealed that decision to the Court. In May 2018, pursuant to another Joint Motion, the parties agreed that a partial vacatur and remand was warranted for the Board to adjudicate entitlement to TDIU in the first instance. The parties asked the Court not to disturb the Board’s decision with respect to its grant of entitlement to a separate evaluation for dislocated semilunar cartilage of the right knee and the Veteran was not contesting the Board’s decision with respect to his service-connected right knee instability. Accordingly, the only issue remaining before the Board is entitlement to TDIU. The Board remanded the matter in December 2018 pursuant to the Joint Motion and referred the issue to the Director of Compensation Service. Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). TDIU 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 disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Furthermore, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. The issue is whether the veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. 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). The Veteran has never met the schedular criteria for TDIU consideration under 38 C.F.R. § 4.16(a). Service connection is in effect for post-traumatic arthritis of the right knee, dislocated semilunar cartilage of the right knee, and instability of the right knee. While the right knee arthritis has been rated as 40 percent disabling from March 17, 2014. However, he has been in receipt of a combined 20 percent disability rating from February 5, 2004, a combined 40 percent rating from June 6, 2006, and a combined 60 percent rating from July 26, 2010. See December 2017 Rating Code Sheet. In a March 2008 statement, the Veteran’s manager stated that they asked the Veteran to work full-time but that he has not been able to do so without being in severe pain. He was employed since November 30, 2006, but his attendance had not been the best since he had to miss work due to numerous medical appointments and general knee difficulties. His manager estimated that the Veteran missed “about 90 days of work” due to his knee disability and when is working, he has some limitations as to what he can do. However, when the Veteran was working and able to work, “he performs very well at printing which does not require any physical work.” His employers made adjustments and have been able to work with his performance. In a May 2008 statement, the Veteran’s former supervisor reported that the Veteran missed a significant amount of work due to right knee pain and discomfort, and that he frequently needed to leave early due to knee pain. On average, he could work four to six hours a day for two to three consecutive days and would then need to take a day or two off to recover. He was occasionally able to work a 40-hour workweek but would then be out the following week. In a July 2009 VA treatment record, the Veteran reported that, when he is active and working during the day, he does not feel as much pain. He worked as a screen printer. During May 2010 VA treatment, he reported working as a screen printer and in a sub shop. In June 2010, he reported working six days a week. He was working two jobs in order to make enough money to buy a car. In September 2010, he reported having the same job for four years and was reasonably financially secure. During March 2011 VA treatment, the Veteran reported working full time as a printer. In April 2011, he again reported working two jobs. During his June 2011 Board hearing, the Veteran testified that he could only work part-time, averaging about 25 hours a week. During November 2012 VA treatment, the Veteran stated that he worked full time in fire and flood restoration. During June 2013 VA treatment, he stated that he “moved up at work” and that his responsibilities have increased. In September 2013, he reported terrible pain in his back and knees; his job was demanding, and the pain was a direct result of what he did for work. In January 2014, he again reported working full time. The March 2014 VA knee examiner noted that the Veteran worked full-time but was limited in his ability to walk, kneel, climb, or lift. The examiner concluded that there were no functional limitations on employment due to his service-connected right knee disability. During January 2015 VA treatment, the Veteran stated that he was desperate to continue working toward his promotion at his physically demanding job and was looking for some help with pain control for the next one to three months. He was working 12 or more hours a day, including hard physical labor outdoors. In September 2016, he stated he worked doing duct cleaning five days a week. During November 2017 treatment, the Veteran reported that he worked as a correctional officer for two years post-service and then worked in construction. He currently owns his own air quality business and worked full time. In June 2020, he stated that his business was doing well and that he was doing the mold portion of the business while his partner did the finances and the duct cleaning. In December 2018, the Board remanded this matter for referral consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service (Director) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). In July 2020, VA contacted the Veteran concerning his claim for entitlement to TDIU and the Veteran stated that he had no interest in filing for TDIU since he currently owns a construction company and is doing well. See Report of General Information. Based on that information, the RO did not refer the claim to the Director. Upon further review of the record, the Board agrees that such referral is no longer warranted. Throughout the appeal period there has been no evidence that the Veteran is unemployable due to his service-connected right knee disability. Quite the opposite, the evidence shows that the Veteran has maintained substantially gainful employment (sometimes working two jobs) throughout the appeal period. The evidence also shows that the Veteran himself does not believe that a TDIU is warranted since he currently owns his own construction company and is doing well. While the March 2014 examiner noted that the Veteran’s service-connected right knee disability caused some functional impairment, the examiner did not indicate total impairment. Additionally, while the Veteran’s manager and former supervisor reported that his service-connected disabilities make it difficult for him to perform certain responsibilities of his job, the evidence does not show that they have made him unable to work. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unemployable due to his service-connected disabilities. The Veteran has not provided his income or any other information that would support a finding of marginal employment in this case. In fact, he has provided evidence to the contrary by stating that he no longer wishes to pursue this TDIU claim since he owns his own construction company and “is doing well.” Accordingly, and based on the evidence that the Veteran has been gainfully employed throughout this appeal period, the Board finds that entitlement to TDIU is not warranted and the Veteran's claim is denied. K. L. WALLIN Acting 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.