Citation Nr: 21022743 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-11 656 DATE: April 19, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected left knee chondromalacia patella, status post reconstruction, does not prevent him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 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 in the Army from June 1981 to June 1985. The Veteran testified before the Board of Veterans’ Appeals (Board) at a hearing in May 2015. A transcript of the hearing has been associated with the claims file. In a May 2018 Board decision, the issue of entitlement to a rating in excess of 10 percent for left knee chondromalacia patella, status post reconstruction, was denied. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the Court granted a Joint Motion for Remand (JMR), vacating the Board’s decision and returning the Veteran’s claim of a rating in excess of 10 percent for left knee chondromalacia patella, status post reconstruction to the Board. Additionally, in the March 2019 JMR the parties agreed that the issue of TDIU had been reasonably raised by the record, including in the May 2015 hearing before the Board, the September 2016 and April 2013 VA examinations, and an April 22, 2014 VA treatment record. Thus, the matter of TDIU was remanded for adjudication. Subsequently, in September 2019 and December 2020 Board decisions, the matter of TDIU was remanded for additional development and adjudication. In a January 2020 supplemental statement of the case (SSOC), the agency of original jurisdiction (AOJ) determined that the Veteran did not meet the schedular requirements for entitlement to TDIU and that the evidence did not warrant consideration for extraschedular TDIU. The AOJ also noted that pursuant to the December 2020 Board remand instructions on December 14, 2020, the Veteran was provided a VA 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability Form, for which no response was received. The claim has since been returned to the Board for review. The Board finds that the additional development conducted pursuant to the Board’s remand instructions was adequate and the AOJ therefore complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). TDIU The Veteran contends that he is unable to obtain and retain substantially gainful employment due to his service-connected left knee chondromalacia patella, status post reconstruction. A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify entitlement to TDIU. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience. 38 C.F.R. § 4.16(b). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board has reviewed the evidence of record and finds that entitlement to TDIU is not warranted. Initially, the Veteran does not meet the schedular requirements for TDIU. The Veteran has been granted service connection for a single disability, left knee chondromalacia patella, status post reconstruction, which has been assigned a 10 percent rating. Therefore, as the Veteran’s does not have a single service-connected disability ratable at 60 percent or more, or two or more disabilities, with a combined rating to 70 percent or more, the Board finds that the Veteran does meet the schedular requirements for TDIU. 38 C.F.R. § 4.16(a). Regarding the Veteran’s educational and employment history, as noted above, on December 14, 2020 the AOJ sent the Veteran a letter requesting the necessary employment information for TDIU development, which substantially complied with the Board’s remand instructions. The Veteran has not responded to the December 14, 2020 letter; however, the Board notes that the evidence of record provides information regarding the Veteran’s educational and employment history. In a May 1988 VA examination, the Veteran reported his employment history as a bus driver, a life insurance agent, and a machinist. In a July 1990 VA examination, the Veteran reported his employment history as a driver/mover and a machinist, and the Veteran also noted a history of trucking school. In the July 1990 VA examination, the Veteran further reported that although he was presently employed, he had previously lost employment due to difficulties with his knee. In an April 2013 VA examination the Veteran reported that he was unable to perform his duties as a crane operator at a steel plant, that he was moved to a production role in the steel plant, and that he was having difficulties maintaining the speed required for his production role. In April 2014 VA treatment records, the Veteran reported that he was retiring for medical reasons. In September 2014 VA treatment records, it was noted that the Veteran is disabled/retired, that he last worked for a steel plant for 13 years, and that his highest degree of education included some college. Next, throughout the period on appeal the Veteran has undergone three VA examinations regarding his service-connected left knee chondromalacia patella, status post reconstruction, which included assessments of the functional impact of his left knee disability. First, in an April 2013 VA examination, the examiner determined that the Veteran's left knee disability causes a functional impairment on his ability to work. The examiner noted that the Veteran works as a crane operator and is unable to do the climbing he needs for his job. As noted above, the examiner indicated that the Veteran was moved to a production role in the plant. Second, in a September 2016 VA examination, the examiner determined that the Veteran’s left knee disability causes a functional impairment on his ability to work. The examiner noted that the Veteran was forced to retire as a crane operator because he was not able to properly push the brake hard enough to operate the crane. The examiner further concluded that the Veteran would be able to perform sedentary employment. Third, in a December 2019 VA examination, the examiner determined that the Veteran’s left knee disability causes a functional impairment on his ability to work. The examiner noted the Veteran may have difficulty with activities requiring climbing stairs and ladders. The examiner further concluded that the Veteran would have no limits in performing sedentary employment. Additionally, in May 2013 private treatment records, the Veteran’s private medical provider determined that the Veteran’s left knee disability causes a functional impairment on his ability to work. The private medical provider performed a functional capacity evaluation and concluded that employment as a crane operator is not recommended due to repetitive use of the left leg with compression force to the left knee and due to the high number of stairs required to access the crane. The medical provider further concluded that although the Veteran is unable to perform the position as a crane operator, he is able to perform the physical demands of a line inspector or a slip making operator. The Board finds that the probative evidence of record does not demonstrate that the Veteran is prevented from obtaining and retaining substantially gainful employment by his service-connected left knee chondromalacia patella, status post reconstruction. First, the evidence regarding the Veteran's educational and employment history demonstrates that although the Veteran has performed mostly physical labor as a crane operator, steel plant production worker, and mover, he has also performed sedentary employment as a life insurance agent, he has performed employment with light physical duties as a driver, and his highest degree of education included some college. Therefore, the Board finds that sedentary employment would be suitable for the Veteran’s educational and employment history. Second, the VA examinations do not demonstrate that the Veteran is precluded from obtaining and retaining substantially gainful employment by his service-connected left knee disability. The April 2013 VA examiner noted that although the Veteran was unable to continue working as a crane operator, he was still employed as a plant production employee. The September 2016 VA examiner determined that the Veteran could not perform his duties as a crane operator due to his service-connected left knee disability but that he could perform sedentary employment. The December 2019 VA examiner noted the Veteran may have difficulty with activities requiring climbing stairs and ladders but that he would have no limits in performing sedentary employment. Moreover, none of the VA examiners indicated that the Veteran's service-connected left knee disability would impact his mental abilities to perform employment activities. Therefore, the Board finds that the VA examinations indicate that the Veteran’s service-connected left knee disability impacts his ability to perform some physical activities including climbing stairs and ladders, does not impact his mental ability to perform employment activities, and does not impact his ability to perform sedentary employment. Lastly, the private medical evidence does not demonstrate that the Veteran is precluded from obtaining and retaining substantially gainful employment by his service-connected left knee disability. Specifically, the evidence demonstrates that the Veteran is unable to perform the physical duties required as a crane operator but that he is able to perform the physical demands of a line inspector or a slip making operator. Thus, the private medical evidence demonstrates that the Veteran is able to perform not only sedentary employment but also employment with lighter physical duties than a crane operator, such as a line inspector or a slip making operator. In summary, the probative evidence of record demonstrates that the Veteran does not meet the requirements for schedular TDIU and that he is not prevented from obtaining and retaining substantially gainful employment by his service-connected left knee chondromalacia patella, status post reconstruction. Further, the evidence demonstrates that the Veteran is capable of performing sedentary employment and employment with light physical duties; thus, the evidence does not warrant a referral for extraschedular TDIU. Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to TDIU, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.