Citation Nr: 21023139 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 08-02 675 DATE: April 20, 2021 ORDER A total disability rating based on individual unemployability due to service connected disability (TDIU) is denied. FINDING OF FACT The Veteran’s service connected disabilities do not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSION OF LAW The criteria for the award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1981 to September 1982. A clarification of the history of this case is needed. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). A January 2007 that continued an existing 20 percent rating of the Veteran’s right knee disability. The Veteran timely appealed this rating decision to the Board. A November 2012 rating decision denied a TDIU. Before the Board’s adjudication of this issue, in October 2013, the Veteran’s representative submitted a brief that raised the issues of entitlement to: 1) service connection for pes planus; 2) service connection for a right thigh disability; 3) service connection for an acquired psychiatric disability; 4) a reopening of a claim for service connection for a left leg disability, to include on the basis of clear and unmistakable error (CUE); 5) a reopening of a claim for service connection for a back disability, to include on the basis of CUE. In January 2014, the Board denied the Veteran’s claim for a rating in excess of 20 percent for a right knee disability, and it found the issue of entitlement to a TDIU on an extraschedular basis to be raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In addition, the Board remanded the five above-listed raised by the Veteran’s representative in October 2013, instructing the Agency of Original Jurisdiction (AOJ) to adjudicate these five issues in the first instance, and directing these issues to be returned to the Board only if the Veteran perfected an appeal. The Board then found the issue of entitlement to a TDIU to be inextricably intertwined with the AOJ’s development and adjudication of these five issues, and it therefore deferred a decision regarding the claim for a TDIU. Following the return of this case to the AOJ, in June 2016, it issued a Supplemental Statement of the Case (SSOC) addressing the remanded issues before returning the case to the Board. In a May 2017 Remand, the Board noted that the AOJ cannot use an SSOC to announce a decision on an issue that had not been previously addressed in a Statement of the Case (SOC), or to respond to a Notice of Disagreement (NOD) on a newly appealed issue that was not addressed in an SOC. See 38 C.F.R. § 19.31(a). The Board therefore remanded the case to the AOJ, instructing the AOJ to address the five issues raised in October 2013 in a rating action, and, if the Veteran initiated an appeal of such issues with a timely notice of disagreement, to issue an SOC. The Board instructed the AOJ to readjudicate the Veteran’s claim for a TDIU with the issuance of an SSOC, and to then return all issues to the Board for which an appeal was perfected. In September 2017, the AOJ, complying with the Board’s May 2017 Remand, issued a rating decision denying the five issues raised in October 2013, namely: 1) service connection for pes planus; 2) service connection for a right thigh disability; 3) service connection for an acquired psychiatric disability; 4) a reopening of a claim for service connection for a left leg disability, to include on the basis of CUE; 5) a reopening of a claim for service connection for a back disability, to include on the basis of CUE. The Veteran was informed of his appellate rights, and no additional evidence—to include an NOD—was received within one year of the September 2017 rating decision. The September 2017 rating decision therefore became final, and these matters are not before the Board. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In July 2020, the AOJ issued an SSOC addressing the issue of entitlement to a TDIU. The Board finds that there has been substantial compliance with the terms of its September 2017 Remand, and it will proceed with an adjudication of the Veteran’s claim for a TDIU. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With that said, the Board notes that in January 2020, the Veteran filed a Supplemental Claim under the Veterans Appeals Improvement and Modernization Act of 2017 (AMA) for the five issues raised in October 2013, namely: 1) service connection for pes planus; 2) service connection for a right thigh disability; 3) service connection for an acquired psychiatric disability; 4) a reopening of a claim for service connection for a left leg disability, to include on the basis of CUE; 5) a reopening of a claim for service connection for a back disability, to include on the basis of CUE. The AOJ should take all appropriate actions to develop the Veteran’s claims under the framework established by the AMA. In March 2010, the Veteran participated in a hearing before a Veterans Law Judge who is no longer employed at the Board. In September 2020, the Veteran was informed of his right to participate in an additional hearing before the Board, and he was notified that if a response was not received within 30 days, the Board would assume that he did not wish to participate in an additional hearing. To date, the Veteran has not responded to this letter, and the Board will proceed to a decision. TDIU VA will grant a total rating based on unemployability when the evidence shows that a veteran is precluded, by reason of service connected disability, from securing and following a substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A substantially gainful occupation is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Employment is “marginal” when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Employment may also be marginal when it occurs in a protected environment such as a family business or sheltered workshop, even when the earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a); see also Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). In this case, the Veteran is service connected for two disabilities: he has a combined 20 percent disability evaluation, based on a 20 percent rating for a right knee disability based on a limitation of extension, and a noncompensable rating based on right knee scarring. When a veteran is service-connected for two or more disabilities, the award of a TDIU on a schedular basis requires a combined disability rating of 70 percent or greater, with at least one service-connected disability rated at 40 percent or greater. 38 C.F.R. § 4.16(a). When, as in this case, the percentage requirements for the award of a TDIU are not met, VA may still award a TDIU on an extraschedular basis if the veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability, and consideration is given to the veteran’s background including his employment and educational history. See 38 C.F.R. § 4.16(b). The Board does not have the authority to assign a total disability rating based on individual unemployability on an extra schedular basis in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). Turning to the facts in this case, the Veteran’s educational history shows that he completed two years of college, majoring in business, and one semester at a community college in a medical assistant program. The Veteran’s employment history shows that he worked as a warehouser from 1988 to 1993, a welder from 1993 to 2001, and a crane operator from July 2001 to September 2010. The Veteran filed the claim for an increased rating for a right knee disability that gave rise to this appeal in March 2006, at which time the Veteran stated that his doctor advised him to change careers because he could no longer work in the construction industry. The Veteran has participated in VA’s Vocational Rehabilitation and Employment (VR&E) program since filing his claim. In a March 2006 Functional Capacity Evaluation, an occupational therapist (OT) noted the Veteran’s desire to obtain employment as a radiology technician. The OT opined that the Veteran could engage in sedentary or light employment. In October 2006, an examiner noted that upon his orthopedist’s recommendation, the Veteran quit his job in construction and was pursuing a career in radiology. A December 2006 Rehabilitation Plan stated that the Veteran’s objective was to complete a diploma program as a medical assistant and consider transitioning into VA’s non-paid work experience program to enhance his employment options. In September 2007, a clinician noted that the Veteran quit working as a crane operator as a result of his right knee disability and was at that time working to become a radiology technician. In March 2008, an examiner noted that the Veteran was a full-time student studying radiology technology. The examiner noted that the Veteran quit his previous job as a crane operator as a result of his right knee symptoms. In June 2009, a clinician noted that the Veteran worked as a VA medical assistant. In a March 2009 vocational evaluation, a vocational counselor stated that the Veteran had the learning ability and clerical aptitude to succeed in clerical training. The Veteran’s stated objectives of obtaining medical assistant training or engaging in non-paid work experience would be realistic. With that said, the vocational counselor stated that the greatest barriers to the Veteran’s vocational functioning were his ongoing problems with attendance and punctuality resulting from various factors in his personal life. In August 2009, a clinician noted that the Veteran was able to walk normally, and he continued engaging in his job, which “involv[ed] reasonable mobility”. In a March 2010 hearing before the Board, the Veteran stated that there were “only certain jobs [he] could take” because his knee disability affected his ability to engage in activities such as climbing and running. The Veteran reported that he was participating in on-the-job training sponsored by the VR&E program as a medical assistant. The Veteran’s position involved a “little bit of walking but mostly desk work”. In November 2011, the Veteran reported that he was “between jobs”. In February 2012, the Veteran stated that he experienced constant aching and occasional sharp pain in his right knee, but he did not take medications to treat his right knee. The Veteran reported that he could walk for a mile before needing to stop and rest. The examiner found that the Veteran’s right knee disability would not affect his ability to work. The examiner noted that the Veteran participated in a VA Compensated Work Therapy (CWT), a clinical vocational rehabilitation program. Noting the Veteran’s experience working at a computer and teaching other veterans in the use of computers, the clinician found that the Veteran could engage in sedentary employment. With that said, the clinician found that the Veteran would be unable to perform physically demanding work involving lifting, climbing, or prolonged walking. In the Veteran’s application for disability benefits from the Social Security Administration (SSA), the Veteran stated that liver disease, the amputation of his right ring finger, and his right knee disability limited his ability to work. The Veteran stated that he could not lift anything and experienced fatigue as the result of his liver disability, and his finger disability limited his ability to write and grip. In February 2014, a clinician noted that the Veteran was currently unemployed as the result of a result of his right knee disability. In February 2020, the Veteran was again accepted into VA’s Vocational Rehabilitation and Employment (VR&E) program. In a questionnaire submitted in association with the Veteran’s application for the VR&E program, the Veteran stated that his service connected disability required him to “limit [himself] on his legs”. The Veteran’s non-service-connected left leg and back disabilities prevented him from shopping, standing for long periods of time, or lifting anything over 50 pounds. The Veteran wished to seek employment as an x-ray technician, a medical assistant, or a welder. In February 2020, an examiner noted that the Veteran wore a knee brace and used a scooter for ambulation. Though the examiner noted that the Veteran’s right knee disability would result in occupational impairment in the form of difficulty standing or walking for long periods of time, the Veteran was currently employed at a “desk job”. A March 2020 VR&E counseling report indicated that the Veteran had a vocational impairment as the result of his service-connected right knee disability, and his non-service connected generalized anxiety disorder, lumbosacral or cervical strain, flatfoot, ankylosis of the hip, impairment of the lower leg, ethanol abuse, carcinoma of the larynx, and chronic osteomyelitis of the foot. The rehabilitation counselor found that the Veteran’s service connected right knee disability contributed in substantial part to his vocational impairment. It was determined, however, that the Veteran’s achievement of a vocational goal was reasonably feasible. In September 2020, the VR&E program stopped action on the Veteran’s claim for VR&E benefits because the Veteran failed to complete the required next steps for VR&E goal planing. Turning to an analysis of these facts, the question of whether a veteran is capable of substantial gainful employment is not a medical one, but is rather a determination for the adjudicator. In other words, the Board is not bound by any particular opinion in making this assessment, but it must instead consider the probative value of the entirety of the evidence of record to determine whether the Veteran is capable of substantially gainful employment. While the record indicates that the Veteran has indeed worked since filing his claim for a TDIU, the Veteran’s periods of employment have been sporadic or otherwise sponsored by VA’s VR&E program. A program such as VA’s CWT is a protected environment or sheltered workshop, which is marginal employment rather than substantially gainful employment. See 38 C.F.R. § 4.16(a); see also 38 C.F.R. § 21.6420(b). Thus, the weight of the evidence indeed supports a finding that the Veteran has not maintained substantially gainful employment since filing his claim for a TDIU. With that said, the weight of the evidence does not support a finding that the Veteran’s service connected right knee disability alone prevents him from securing and following a substantially gainful occupation. During his participation in the VR&E program, the Veteran consistently expressed a desire to participate in sedentary employment, and clinicians, examiners, and vocational counselors consistently found him to have the ability to engage in such employment. Sedentary employment is the common meaning in society of non-physical, typically white collar, office-type work, work that would necessitate working at a desk for the majority of the work-day. Such work would not involve having to physically operate machinery with foot pedals or handcranks, or to walk or stand for prolonged periods. Such work often involves interactions with the public. Here, the Veteran’s previous work required him to physically operate a crane, or to walk or stand for prolonged periods, which his knee disabilities preclude him from being able to do. His knee disabilities do not preclude him from performing the mental aspects of those jobs. He has been found to have the ability to work at desk jobs, or other less physically-demanding jobs, and his knee disabilities have not been found to interfere with his mental ability to pursue such work. None of the shows that the Veteran’s service-connected disabilities alone prevent him from being able to perform the physical and mental duties of substantial and gainful work. Indeed, the record shows he has some experience teaching computer skills and was found capable of medical assistant training and other clerical training. Rather, as noted by the VRE caseworker, he has a number of nonservice-connected disabilities that would likely cause him to have trouble performing the mental duties required of substantial gainful employment, including an acquired psychiatric disability, cancer, a liver disability, and substance abuse. These disabilities are more likely to interfere with his ability to maintain a schedule to complete tasks and to interact with the public than his knee disabilities, which have not been found to interfere with his mental abilities. The record does not show that his right knees precluded him from completing the VRE program. In summary, the weight of the evidence is against the Veteran’s claim that he is unable to secure or follow a substantially gainful occupation as a result of his service connected right knee disabilities. The Board does not doubt that the Veteran’s service connected right knee disability affects his employability, as evidenced by the existing combined 20 percent rating of the Veteran’s disabilities. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: “[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Thus, upon a thorough review of the evidence of record, the Board finds that the Veteran is not precluded from engaging in substantially gainful employment as a result of his service connected right knee disabilities. This case need not be referred to the Director of Compensation and Pension Service for extraschedular consideration of a TDIU. As such, the benefit of the doubt doctrine is inapplicable, and the claim for TDIU must be denied. 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Amanda E.H. Gibson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.