Citation Nr: 21020929 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 11-24 941 DATE: April 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran is not unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Air Force from July 1975 to July 1979. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing via videoconference in July 2013. However, she did not appear for the scheduled hearing, nor did she provide any reason for not attending or request that the hearing be rescheduled. Accordingly, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d). The Board remanded the Veteran’s claim for entitlement to a TDIU in October 2020. The October 2020 remand directed the Agency of Original Jurisdiction to refer the claim to the Director of Compensation Service for consideration. As this development has occurred, the Board finds that there has been substantial compliance with the October 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU The Veteran seeks entitlement to a TDIU. A total disability rating may be assigned, where the schedular rating is less than total, when it is determined that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16,4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Total disability ratings for compensation may be assigned pursuant to 38 C.F.R. § 4.16 (a) 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, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). The Veteran’s service-connected disabilities for the period on review are recurrent subluxation of the right knee, effective June 30, 2010, and rated 30 percent disabling; right knee arthritis and patellofemoral pain syndrome, effective December 22, 2017, and rated 20 percent disabling; residuals of postoperative right patella realignment, effective from July 14, 1979, to December 22, 2017, and rated and rated 10 percent disabling from January 14, 1988, to December 22, 2017,; and fibrotic cysts in lower side of the breast, effective June 14, 1979, and rated 0 percent disabling. For the period from January 14, 1988 to June 29, 2010, the Veteran’s combined rating was 10 percent. From June 30, 2010, to the present, the Veteran’s combined rating is 40 percent. Thus, the Veteran’s combined disability rating did not meet the schedular threshold percentage requirement for consideration of a TDIU under 38 C.F.R. § 4.16(a). Nonetheless, even when the above threshold percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may be granted in exceptional cases, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board must determine whether the Veteran is precluded from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a “living wage”) as a result of service-connected disabilities. See Moore v. Derwinski, 1 Vet. App. 356 (1991). To prevail in a claim for a TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place the Veteran in a different position than other veterans who meet the basic schedular criteria. 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 is whether the Veteran, in light of her service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether she can find employment. See 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” in § 4.16(b) 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 the following: the 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. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). Turning to the evidence of record, the Veteran’s SSA records indicate she was found to be disabled for SSA purposes from March 8, 2010. The July 2012 Administrative Law Judge decision finding the Veteran to be disabled for Social Security Administration purposes reflects that the combined effect of the Veteran’s service-connected knee disabilities and her nonservice-connected disabilities, to include diabetes mellitus, diabetic peripheral neuropathy, degenerative joint disease bilateral knees, osteoarthritis bilateral hips, and obesity, were considered in making that determination. The Board is not bound by a decision made by the SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Furthermore, the Board finds the SSA’s conclusion that the Veteran is disabled and unable to work to be unpersuasive because it was made in consideration of the Veteran’s nonservice-connected disabilities, which are not for consideration in determining entitlement to a TDIU. Regarding the Veteran’s work experience and education, the Veteran has not provided this information as requested in a November 2020 letter from VA. Therefore, a full account of the Veteran’s work experience and education is not of record. However, other evidence of record provides some information in that regard. The Veteran reported to her VA care providers that she continued to provide childcare for family members and work part-time at a call center. In 2018 the Veteran reported she was no longer employed. Her SSA records show a previous work history of clerk, manufacturing operator, and customer service representative. They also show that she has a high school education with some additional training in medical business and PC accounting. Regarding the Veteran’s physical ability to perform work, the medical evidence shows some impairment as a result of the service-connected right knee disabilities. At an October 2010 VA examination, the Veteran reported that she could stand 15 minutes and walk for one-quarter mile. The VA examiner noted the Veteran experiences significant effects on her occupation, as she had to take several breaks during her shift to rest her right knee. On her September 2011 VA Form 9, the Veteran reported that her service-connected right knee disabilities limit her ability to walk and stand for any length of time. At a February 2013 VA treatment visit, the Veteran reported that she has trouble using stairs due to her service-connected right knee disabilities. At a December 2017 VA examination, she reported a very limited tolerance for weightbearing activities like standing and walking, and that she cannot squat, crouch, stoop, or manage reciprocating gait for climbing and descending stairs. The VA examiner noted the present severity of the Veteran’s advanced degenerative joint disease of the right knee precludes all physically demanding occupational activities and would interfere with all more sedentary activities that required more than a few minutes of walking or standing at any one time or any stooping, crouching, squatting, or climbing/descending stairs. Regarding whether the Veteran’s mental abilities to perform work are limited by her service-connected disabilities, the Board finds the evidence does not support such a finding. Neither the Veteran nor any medical professional has ever made an assertion that the Veteran’s service-connected disabilities affected her concentration, memory, ability to adapt to change, or any similar mental factor. The Board again notes that impairments caused by nonservice-connected disabilities are not for consideration in determining whether a TDIU is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. Accordingly, the Board finds the there is no indication in the record that the Veteran’s service-connected disabilities cause mental or psychiatric limitations that affect her ability to secure or follow a substantially gainful occupation. In view of the above, the Board finds the record shows that, due to her service-connected disabilities the Veteran, is limited to work performed mostly in a sitting position and requiring no more than 15 minutes of standing and/or walking at a time, no more than 2 hours total of standing and/or walking in an 8-hour workday, involving no significant bending at the waist or climbing of stairs, and involving no kneeling. With such limitations, the Veteran would not be able to perform some of her prior occupations. However, she would be able to perform any number of sedentary jobs, such as clerical work, inspection work, and assembly work, which do not involve exertional activities or postural activities beyond the Veteran’s residual functional capacity in view of her service-connected disabilities, as indicated by the relevant records. In that regard, the Board notes that the term “sedentary” is defined for purposes of this decision as work that requires no more than 15 minutes of standing and/or walking at a time, requires no more than 2 hours total of standing and/or walking in an 8-hour workday, and involves light lifting of no more than 10 pounds. In determining whether the Veteran is entitled to a TDIU, the Board has also considered the Veteran’s level of education and previous work experience. See 38 C.F.R. §§ 4.16. The Veteran has indicated that she has a high school education with some additional training. The Board finds that the Veteran’s education level is not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as clerical, inspection, or assembly work. Although the Veteran may no longer be able to perform some of her past work, her work history would not prevent her from transitioning to an unskilled or semi-skilled sedentary occupation, or from securing or following an unskilled or semi-skilled sedentary occupation, which do not require special training and can be learned on the job site. The Board does not doubt that the Veteran’s service-connected disabilities limit her occupational functioning. However, as discussed above, during that period the Veteran retained the functional capacity to perform the duties required of any number of sedentary jobs that do not involve significant bending at the waist or climbing of stairs, and do not involve kneeling, such as such as clerical work, inspection work, and assembly work. Finally, the Board acknowledges that it previously found the issue of entitlement to a TDIU should be referred to the Director of VA’s Compensation and Pension Service for extraschedular consider. Specifically, in the October 2020 remand the Board found that the record, to include the Veteran’s assertions that she was no longer employed and the December 2017 VA examiner’s findings, supported such a referral. The standard for a TDIU is different than the standard for referral of a TDIU for extraschedular consideration. The standard for a TDIU is that the Veteran is precluded from being able to secure or maintain a substantially gainful occupation due to service-connected disabilities. However, the standard for referral is whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” Ray, 31 Vet. App. at 66. Thus, in the October 2020 remand, the Board essentially found that there was sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of her service-connected disabilities. Such a finding is not contradictory to the Board’s finding in this decision that, based on all evidence of record, the Veteran is not unable to secure or follow a substantially gainful occupation due to her service-connected disabilities. The Board has considered the Veteran’s functional limitations due to her service-connected disabilities and finds that the weight of the evidence does not demonstrate that she is unable to secure or follow a substantially gainful occupation by reason of her service-connected disabilities. Accordingly, the preponderance of the evidence demonstrates that the criteria for a TDIU have not been met, and the Veteran’s claim therefore must be denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. T. J. ANTHONY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.