Citation Nr: 21020799 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-16 921 DATE: April 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities prior to December 12, 2013, on an extraschedular basis, is granted, subject to the law and regulations governing the award of monetary benefits. FINDING OF FACT Prior to December 12, 2013, the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU prior to December 12, 2013 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1973 to July 1977. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the RO denied several claims, including an increase in evaluation of the Veteran’s service-connected right knee patellofemoral syndrome. In December 2014, the Veteran disagreed with the assigned evaluation and appealed to the Board in March 2017. The RO denied TDIU in November 2018 and March 2019. The Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2019. A transcript is of record. Though he had not listed TDIU as an issue in his March 2017 appeal to the Board, the Veteran has alleged an inability to maintain employment due to his service-connected disabilities. The issue of TDIU is part and parcel of the claim for a higher initial rating for the Veteran’s right knee disability and before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In December 2019, the Board granted an increase in the Veteran’s right patellofemoral syndrome (right knee disability) evaluation, granted a separate initial 10 percent rating for right knee instability, reopened and granted service connection for pes planus, granted service connection for tinnitus, granted TDIU from December 12, 2013, and remanded entitlement to TDIU prior to December 12, 2013 to the Agency of Original Jurisdiction (AOJ). In January 2020, the RO implemented the grants including entitlement to TDIU from December 12, 2013. In September 2020, the RO requested administrative review regarding TDIU in accordance with 38 C.F.R. § 4.16(b) from the VA Director of Compensation Service and recommended entitlement to benefits on an extraschedular basis from October 1, 2013. 1. TDIU prior to December 12, 2013 Where the schedular rating is less than total, a total disability rating may nonetheless be assigned 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 service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 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). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation as having two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of: Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran has already been awarded a TDIU based on the combined impairment of his service-connected disabilities effective December 12, 2013. As discussed in the December 2019 Board decision, the issue of a TDIU prior to December 12, 2013 was raised by the record in connection with the claim for an initial higher rating for the right knee, which began on December 3, 2012. December 3, 2012 was the date of the claim for service connection that was granted in an August 2013 rating decision, with an initial rating of 10 percent assigned effective the date of claim. Although a November 2014 rating decision continued the 10 percent rating in response to an October 15, 2013 claim, new and material was received within the one year appeal period following the assignment of an initial 10 percent rating and thus the initial claim remained pending. Thus, the date of claim for purposes of determining the appeal period for the issue of entitlement to a TDIU prior to December 12, 2013 is December 3, 2012. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (the Veteran’s notice of disagreement with the initial rating assigned in connection with the grant of service connection, combined with evidence of unemployability, resulted in the issue of entitlement to a TDIU from the effective date of the grant of service connection being on appeal). Prior to December 12, 2013, the Veteran was service-connected for right knee patellofemoral syndrome rated at 20 percent disabling from December 3, 2012, right knee instability rated at 10 percent disabling from December 3, 2012, bilateral pes planus rated at 10 percent disabling from December 3, 2012, and tinnitus rated at 10 percent disabling from October 15, 2013. His combined evaluation was 40 percent from December 3, 2012 to October 15, 2013, and 50 percent from October 15, 2013 to December 12, 2013. The Veteran’s combined schedular disability rating did not meet the minimum requirements in 38 C.F.R. § 4.16(a) for consideration of a TDIU on a schedular basis at any time during the appeal period prior to December 12, 2013. See 38 C.F.R. § 4.25. Because the Veteran’s combined rating did not meet the percentage standards of 38 C.F.R. § 4.16(a) for the appeal period prior to December 12, 2013, the issue of entitlement to a TDIU may be considered only under 38 C.F.R. § 4.16(b). It is the established policy of VA that all Veterans who are individually unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Such an extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board did so in its December 2019 remand. In November 2020, the Director of Compensation Services provided an advisory opinion on the Veteran’s claim for extraschedular of TDIU prior to December 12, 2013. The Director concluded that entitlement to TDIU was not shown prior to December 12, 2013, particularly because the Veteran had a college education, and also explained that the majority of the disabilities causing unemployment were not service connected until December 12, 2013 or later. The Board conducts a de novo review of a Director’s decision denying extraschedular consideration under 38 C.F.R. § 4.16(b); the Director’s decision is in essence the decision of the AOJ and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) ([T]he Director’s decision [pursuant to 38 C.F.R. § 4.16(b) is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence). For the following reasons, the evidence is at least in equipoise as to whether the Veteran was able to secure and maintain substantially gainful employment prior to December 12, 2013. In August 2018, the Veteran submitted a VA Form 21-8940 for a TDIU. He reported that he has been unemployed from his letter carrier career since September 30, 2013, at least in part, due to his service-connected right knee. He reported four years of college, and not having any other education and training before or after becoming too disabled to work. On a VA From 21-4192 Request for Employment Information, the Veterans former employer reported that he worked as letter carrier from December 1977 and retired in September 2013. The record does not reflect that he has engaged in any form of marginal employment after September 30, 2013. In February 2013 private medical records, the Veteran told his orthopedist he was planning to retire that March because stairs, squatting, and deep knee bends bothered him to a great degree. See February 2013 orthopedic surgery visit. In May 2015, documented in a private orthopedic surgery correspondence, a doctor wrote that the Veteran was unable to do his usual job due to his right knee for the foreseeable future. At another May 2015 orthopedic visit, it was documented that the Veteran could not do his job which required squatting, deep knee bends, and stairs, and the Veteran was using up all of his sick leave and then going to retire in August. In his March 2017 appeal to the Board, the Veteran wrote he had swelling in the knee and tinnitus affected his ear with draining on the right and it sounds like when a television station is conducting a test. In March 2019, the Veteran compared the tinnitus he experiences to hearing “static.” The Veteran testified at the October 2019 Board hearing that the combination of his disabilities makes it impossible to do any kind of full-time job, including his service-connected right knee, bilateral foot disability, and tinnitus. The Board has considered the Veteran’s competent and credible lay statements, in addition to the medical evidence of record. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert). The fact that a veteran’s non-service connected disabilities may also render him/her unemployable does not affect the Board’s analysis, as non-service connected disabilities cannot be considered under the above cited regulations in adjudicating the issue of entitlement to a TDIU. Moreover, the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one but is rather a determination for the adjudicator. Id. The record shows the Veteran’s right knee disability impacts his ability to perform the physical duties of his previous job, but also, the physical acts of everyday life. Specifically, the record reflects the Veteran has limitations in walking, standing, squatting, bending, flexing the knee, walking up and down stairs, getting in and out of vehicles, and climbing. The collective evidence of record reflects that the Veteran has been unemployed since September 30, 2013 and suggests that his service-connected right knee disabilities prevented him from securing or following a substantially gainful occupation from this date. His work history was in letter carrying which he could no longer perform. In addition, he also was service connected for tinnitus and pes planus. Thus, the limitations indicate that the Veteran would be unable to perform even sedentary work. The severity of the symptoms of the Veteran’s service-connected disabilities, and his educational and occupational experience, reflects that the evidence is approximately evenly balanced on the question of whether the Veteran’s service connected disabilities prior to December 12, 2013 precluded all substantially gainful employment for which his education and occupational experience would otherwise qualified him. The reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. Thus, entitlement to a TDIU, on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), is granted prior to December 12, 2013. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board will not assign an effective date for the grant of TDIU prior to December 12, 2013 and will allow the AOJ to do so in the first instance. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”). However, it appears from the above evidence that they Veteran last worked full time in February 2013, and officially retired from his position on September 30, 2013. See February 2013 VA examination for knee (Medical History section indicating that the Veteran recently stopped working at his job as postal carrier due to knee pain, which was constant). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, 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.