Citation Nr: 21022154 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-46 208 DATE: April 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis prior to August 1, 2017 is denied. FINDING OF FACT The Veteran’s service-connected disabilities did not prevent the Veteran from obtaining and maintaining substantially gainful employment consistent with his education and occupational background prior to August 1, 2017. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis prior to August 1, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1962 to May 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision. The issue of entitlement to a TDIU is part of the increased rating appeals stemming from that rating decision. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2020. A transcript of that hearing is of record. A March 2020 Board decision granted entitlement to a TDIU effective September 1, 2019, and remanded entitlement to a TDIU on an extraschedular basis prior to August 1, 2017. The Board notes that the Veteran had a total combined schedular rating during the period from August 1, 2017 to September 1, 2019, which means that entitlement to a TDIU based upon multiple service-connected disabilities during that period was moot. 1. Entitlement to a TDIU on an extraschedular basis is granted prior to August 1, 2017 The Veteran contends that his service-connected disabilities have rendered him unemployable prior to August 1, 2017. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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 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). Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. It is the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). In exceptional circumstances, where the Veteran does not meet the aforementioned schedular requirements, a total rating may nevertheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director, Compensation Service (Director), for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). In this case, prior to August 1, 2017, the Veteran was service-connected for right ankle strain (rated as 20 percent disabling), left knee strain (rated as 10 percent disabling), left knee instability (rated as 10 percent disabling), and hypertension (rated as noncompensable). The combined evaluation was 40 percent. During the period from August 1, 2017 to September 1, 2019 the Veteran was assigned a total combined evaluation due to a 100 percent rating assigned for the left knee from August 1, 2017 to October 1, 2018, and a 100 percent assigned to the right knee from July 17, 2018 to September 1, 2019. Therefore, entitlement to a TDIU based upon the combined effects of the Veteran’s service-connected disabilities was moot during this period. The March 2020 Board decision referred the Veteran’s claim for entitlement to a TDIU prior to August 1, 2017 to the Director, Compensation and Pension Service, for consideration of a TDIU award under 38 C.F.R. § 4.16(b). An October 2020 Administrative Review found that the evidence indicates that sedentary employment was possible when considering the Veteran’s employment, educational, and training history. In a December 2020 Advisory opinion, the Director concluded that entitlement to TDIU benefits on an extraschedular basis was not warranted. On his September 2019 application for unemployment, the Veteran reported a work history as “contract administrator” from June 1995 to July 2017 and having a 4 year college degree. He cited his left and right knee disabilities as the conditions preventing substantially gainful employment. See VA Form 21-8940. The argument in favor of entitlement to a TDIU prior to August 1, 2017 is based upon a February 2013 VA examination as to the right ankle. This examiner opined that, if the Veteran were not retired, he would not be able to work. The examiner explained that the constant pain and instability of the right ankle requires that the Veteran use a cane for balance and walking, and that the Veteran would not be able to walk for more than one block of street without slowing down. The examiner also noted difficulty with climbing the stairs and weight bearing. The February 2013 examination indicates that the Veteran’s past work was as a construction administrator. The Board finds that the preponderance of the evidence is against a finding that the Veteran was unable to obtain or sustain substantially gainful employment based upon his service-connected disabilities prior to August 1, 2017. The February 2013 examiner seems to believe that the Veteran’s past work as a construction administrator would be impossible due to the Veteran’s limitations on walking and weight bearing. However, the record as a whole indicates that the Veteran’s occupational and educational history are not inconsistent with work that does not require prolonged walking or weight bearing. The Veteran did not perform the physically demanding work of a construction worker, but rather, as noted in a June 2016 VA treatment note, he was a price estimator and then contract administrator. Administrative work, even in the construction field, does not have the demanding physical requirements of a construction worker. Moreover, the June 2016 VA treatment note also indicates that he received two degrees from a theological seminary, and was an associate pastor. He is thus qualified to work as a pastor, a position that should be able to accommodate difficulty with walking and weight bearing. The Board also notes that a February 2014 treatment note indicates that the Veteran worked part-time as a basketball referee. Although he only did this once a week, the amount of physical exertion, mobility, and weight-bearing required of a basketball referee during a game would likely be more than that typically required by a pastor or administrator, and is additional evidence that the Veteran had the physical capacity to perform work consistent with his education and occupational history. The February 2013 examiner did not take this history into account. While the Board will defer to the examiner’s assessment of medical issues such as the physical limitations imposed upon the Veteran by his service-connected disabilities, it need not defer regarding non-medical issues like the effect of those limitations on the Veteran’s ability to work. The March 2020 referral for consideration of an extraschedular TDIU merely indicates that there is evidence sufficient to substantiate a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities, and does not bind the Board to grant an extraschedular TDIU. Ray v. Wilkie, 31 Vet. App. 58 (2019). The March 2020 remand made no factual determinations in support of the referral of entitlement to a TDIU prior to August 1, 2017. Based upon the evidence described above indicating that the Veteran’s service-connected disabilities did not prevent him from obtaining or maintaining substantially gainful employment consistent with his previous work experience as a contract administrator and pastor, the Board finds that entitlement to a TDIU prior to August 1, 2017 must be denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.