Citation Nr: 21022839 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 11-28 166 DATE: April 19, 2021 ORDER Entitlement to referral for extraschedular consideration for a total disability rating for compensation due to individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. CONCLUSION OF LAW The criteria for referral for an extraschedular TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2001 to July 2001 and again from May 2002 to July 2002. Regarding TDIU, a review of the record shows that the Veteran has been unemployed at times during the relevant appeal period beginning in August 2010. The Board previously took jurisdiction on the issue of TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, is part of a claim for increased compensation). In this instance, a 2010 VA examination report, relating to an increased rating claim with an appeal period beginning in August 2010, showed that the Veteran reported that he was unemployed as an electrician for the last one to two years due to a right knee disability. However, subsequent records indicated that the Veteran had resumed employment. Therefore, the matter was remanded by the Board in October 2020 in order for the Veteran to be sent a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) so that he may provide details regarding his employment history, as well as to then contact the Veteran’s listed employers for relevant information pertaining to his employment. In December 2020, the Veteran was sent and asked to complete and return a VA Form 21-8940, as well as a VA Form 21-4142a (General Release for Medical Provider Information). The Veteran’s representative was also provided a copy of this correspondence. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). As of the date of this decision, there has been no response to the December 2020 correspondence from the Veteran. A post remand brief provided by the Veteran’s representative in March 2021 made no mention of the of the Veteran’s failure to cooperate with the October 2020 remand directives. The Veteran contends that he is unemployable due to his service-connected bilateral knee disabilities. The Veteran suffered a right knee injury during combat training while on active duty, which required an arthroscopic procedure and three reconstructive open surgeries from 2009 to 2010. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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 because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran’s service-connected disabilities do not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a). The Veteran is service connected for an anterior cruciate ligament (ACL) tear of the right knee (100 percent disability rating from August 16, 2010 and 30 percent disability rating from December 1, 2010); left knee condition associated with ACL tear of the right knee (10 percent disability rating from May 31, 2012); and instability of the right knee due to ACL tear (30 percent disability rating from April 1, 2010, 0 percent disability rating from March 1, 2012, and 10 percent disability rating from January 2, 2020). The Veteran also has noncompensable disability ratings for residuals of fractured ribs associated with ACL tear of the right knee (0 percent disability rating from March 3, 2009); and residuals of parapneumonic effusions associated with ACL tear of the right knee (0 percent disability from March 3, 2009). Thus, the Veteran had a combined total disability rating of 100 percent from August 16, 2010; 50 percent from December 1, 2010; 30 percent from March 1, 2012; and 40 percent from May 31, 2012. The Board notes that the Veteran also has multiple conditions for which he is not service connected, and, thus, cannot be considered for purposes of the Veteran’s TDIU claim, including a history of stroke with impaired use of the left upper extremity; right foot metatarsalgia; tinnitus; hepatitis C; and posttraumatic stress disorder (PTSD). When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Accordingly, the Board will analyze whether the evidence of record demonstrates the need for a referral to the Director of the Compensation Service for extraschedular consideration. Additionally, effective at the beginning of the relevant appeals period herein, from August 16, 2010 to December 1, 2010, the combined rating for the Veteran's service-connected disabilities was 100 percent. The Board notes that a grant of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as a TDIU rating could, in certain circumstances, render the Veteran eligible for special monthly compensation (SMC). SMC may be warranted if the Veteran has a 100 percent disabling rating for a single disability, and VA finds that a TDIU rating is warranted based solely on disabilities other than the disability that is rated at 100 percent. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). However, the Board notes that during that period, the Veteran was provided a 100 percent disabling on a schedular basis due to recovery from surgery on his right knee. The Veteran’s other knee disabilities were rated appropriately during that time based on commensurate schedular ratings that are not suggestive of disability, and the evidence of record during that period does not indicate otherwise. Hence, the Board finds as fact that entitlement to a TDIU rating was moot for the period from August 16, 2010 through December 1, 2010. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that referral for extraschedular consideration of a TDIU rating is warranted. The reasons follow. Although the Veteran has indicated that he was unemployed for approximately two years prior to the relevant period, VA treatment records from 2011 show that the Veteran reported that he was laid off from his job as an electrician. Despite reports of ongoing knee problems, this does not suggest that the Veteran was unable to secure and follow a substantially gainful employment at that time because of his knee disabilities. Less than two weeks after the Veteran’s most recent right ACL reconstructive surgery in mid-August 2010, the Veteran reported minimal pain at physical therapy and stated that he no longer needed crutches. By late September, the Veteran returned to physical therapy after a three-week vacation and stated that the right knee had “really improved.” He stated that he still had some difficulty with stairs but that he was able to walk around the city without problems, his knee did not give way, and he had not been using his extensionator “at all.” In December 2010, he reported some moderate pain symptoms. A Social Security Administration (SSA) examiner stated that the Veteran was capable of lifting up to 50 pounds occasionally, and 25 pounds frequently; standing/walking about six hours in a normal workday; and sitting about six hours in a normal workday. The Veteran underwent a VA examination in September 2011. The examiner noted that the Veteran’s right knee disability does not impact his ability to work. It appears that sometime in 2011, the Veteran began working again. Some specifics remain unclear, as the Veteran did not return the VA Form 21-8940 as requested by the October 2020 remand order. However, the Veteran underwent multiple examinations in May 2012 and reported that he had last worked in February of that year as a maintenance electrician for a period of 13 months, but that he was fired because “he could not do his job.” He reported that his job was very physical, involving bending, squatting, climbing ladders, and crawling, and that his knee “makes that difficult.” The Veteran exhibited a normal gait with no difficulty sitting or standing. He reported the ability to drive and perform household chores. The examiner opined that the Veteran is capable of work that does not require him to crawl or stoop all the time. In July 2012, the Veteran was noted to have a stroke that resulted in left-sided paralysis, for which the Veteran is not service connected. Still, in May 2013, the Veteran again reported that he was working full-time as a maintenance electrician, despite his left-sided weakness. The Veteran underwent another VA examination of his bilateral knees in August 2013. When asked to describe the functional impact of the Veteran’s knee disabilities, the examiner stated that they cause the Veteran difficulty kneeling, stooping, walking long distances, or climbing stairs. The Board notes that while the Veteran’s knees may have caused some difficulties with these activities, his continued activity levels and employment suggest that he was not precluded from performing these activities or other requirements of substantially gainful employment. There are some gaps in the Veteran’s treatment history thereafter but without notation of significant exacerbations of the Veteran’s service-connected disabilities. VA treatment records in February 2016 indicate that the Veteran reported that his right knee was “pretty much taken care of” with current pain rated at a four out of 10. He stated that he can walk for 10 to 15 minutes without increased pain or weariness. Alternatively, there are notes documenting the Veteran’s history of stroke and stating that associated limitations of left arm mobility prevented him from being able to work. Such statements are probative evidence that complications from the Veteran’s stroke, and not his service-connected disabilities, were the source of the Veteran’s unemployment during this period. In December 2016, the Veteran exhibited full strength in his lower extremities. He was noted to live alone and stated that he is mostly able to manage his activities of daily living independently, but that he has some difficulty climbing into his tub and that his father helps him trim his toenails. In April 2017, the Veteran was noted to be serving a nine-month jail sentence. The following month, the Veteran reported that he last worked in 2015 and that he was not planning on returning to employment. However, treatment records from early 2020 indicate that the Veteran returned to work through a compensated work therapy program at VA, as a member of the grounds crew at a VA medical center. The Veteran reported that it was full-time work but that he was able to attend medical appointments as needed. He stated that he took breaks and that he was able to sit for portions of his job. A 2020 VA examiner documented that the Veteran’s knee disabilities would cause difficulty in any job that would require prolonged walking, standing, or sitting. The Veteran recorded full strength in the left knee and four out of five strength on flexion in the right knee, but full strength on extension, with noted mobility difficulties. Thereafter, treatment records showed the Veteran to have full strength in his extremities and to be independent in activities of daily living. In November 2020, the Veteran reported that he was working at a factory, performing tasks such as sweeping, emptying trash, and occasionally using a bandsaw. That month, the Veteran requested and received a letter from his doctor indicating that he is able to work, even in spite of limitations in his left upper extremity associated with his history of stroke. No mention of the Veteran’s service-connected disabilities was made. The preponderance of the evidence is against a finding that the Veteran is precluded from obtaining and carrying out substantially gainful employment due to his service-connected disabilities. Despite some pain and mobility issues, the record shows that, even despite his nonservice-connected disabilities and legal difficulties, the Veteran has returned to employment requiring relatively high levels of physical activity. The Veteran most recently reported employment at a factory, where he would perform tasks such as sweeping, emptying trashing, and occasionally using a bandsaw. He has not provided evidence to show that he is no longer employed, despite being asked to provide information regarding his employment history. He has remained independent in his activities of daily living. He reported good recovery from his prior knee surgeries, and the record does not show ongoing treatment relating to his noncompensable disability ratings for rib fractures and parapneumonic effusions associated with his history of knee injury. Even with the above-noted knee symptoms, the record shows that the Veteran would at least be capable of more sedentary work than the positions that he has reported performing during the relevant appeal period herein. Regarding the Veteran’s education, training, skill, and work history, an evaluation relating thereto has been hindered by the Veteran’s failure to submit a completed VA Form 21-8940, which was provided to him and requested to be returned, pursuant to the October 2020 Board remand directives. The Board notes that the duty to assist a claimant is not a one-way street and the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 406 (1991); 38 U.S.C. § 5107(a). However, the Veteran’s treatment records provide some pertinent information. For example, the Veteran reported working as a maintenance electrician up until 2012. In 2017, he reported that he last worked in 2015. Although it is not made clear what job he held at that time, the Veteran has separately reported working as a dishwasher at Denny’s. In early 2020, the Veteran was employed through a compensated work therapy program on a grounds crew at VA. The Veteran reported that he was employed doing custodial/maintenance work at a factory in late 2020. Although the record reflects periods of unemployment, it also heavily indicates significant outside contributing factors, such as the Veteran’s history of stroke with limitations using his upper left extremity, as well as legal trouble and periods of incarceration resulting from substance abuse. The Veteran’s repeated return to physically-demanding labor after periods of unemployment suggests that the Veteran’s service-connected disabilities alone did not result in sustained unemployability. Nonetheless, the Veteran’s employment history reflects skilled work that would show a capacity for learning, training, and adaptation. These skills do not appear to have been hindered by the Veteran’s service-connected disabilities. Even if the Veteran is unable to return to his past work as an electrician, such skills would facilitate the Veteran’s transition to a separate line of work and the record shows that the Veteran has worked in multiple different fields over the course of the relevant period. As to the Veteran’s physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran experiences pain in his knees with difficulty performing prolonged sitting, standing, walking, or postural activities, such as kneeling or crawling. However, physical examinations mostly reflect the Veteran to ambulate independently. He has demonstrated independence in his activities of daily living and the ability to perform household chores, as well as to perform duties as a grounds crew and working in a custodial/maintenance role at a factory. He requested and received a letter from his physician stating that he was capable of continuing to perform this work, even in spite of his nonservice-connected disabilities. These findings do not suggest physically incapacitating levels of impairment. The totality of the evidence shows that the Veteran is capable of performing work at least at the sedentary exertional level with the ability to occasionally change positions to avoid prolonged sitting. The Department of Labor’s Dictionary of Occupational Titles (DOT) defines sedentary work as exerting up to 10 pounds of force occasionally (i.e. up to one third of the time), and/or a negligible amount of force frequently (i.e. from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. According to the DOT’s definition, sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. This definition fits the standards used in the Veteran’s SSA records, and the Board finds no prejudice to the Veteran in considering the definition for purposes of deciding this claim. The Veteran has repeatedly reported the ability to perform work in excess of the sedentary limitations described above. Accordingly, the weight of the evidence shows that the Veteran is physically capable of performing substantially gainful employment. As to the Veteran’s mental ability to perform substantially gainful employment, the Veteran has no service-connected psychiatric disorder. The Veteran’s service-connected disabilities have not been shown to cause the Veteran communicative deficits. Even when considering nonservice-connected disabilities, examination findings generally indicate intact cognitive functioning, and records from 2020 reflect the Veteran to be competent to make decisions and independent in his activities of daily living. As the Veteran’s service-connected disabilities do not cause the Veteran mental limitations, the weight of the evidence shows that the Veteran is mentally capable of performing substantially gainful employment. Based on the above assessment of the Veteran’s physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran is capable of work that would result in income at the level of substantially gainful employment. For example, there are jobs that can be performed from home, such as a telemarketer, where the employee makes calls and reads a script, which does not require extensive training or experience, would require minimal exertional activity, and would allow the Veteran to change positions as needed. Similarly, the Veteran appears capable of performing certain cashier or assembly line positions, or work as a library, theater, or museum attendant, positions that would not be physically demanding and would allow the Veteran to change positions intermittently. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could perform. Additionally, although the Board has limited consideration herein to sedentary occupations, such classification is meant to consider the Veteran’s baseline physical capabilities and his activity levels and occupational pursuits have often indicated a capacity to perform significantly higher levels of exertional activity, as discussed above. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment due to his service-connected disabilities during the relevant period. For all the reasons described above, the Board finds that the preponderance of the evidence is against a finding that Veteran is precluded from all forms of substantially gainful employment and, therefore, is not entitled to referral for extraschedular consideration of a TDIU rating. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, entitlement to referral for extraschedular consideration of a TDIU rating is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.