Citation Nr: 21023778 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-08 692 DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence does not demonstrate that the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Navy from September 1971 to May 1993. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in February 2018. A transcript of the hearing is associated with the electronic claims file. The Board remanded the TDIU issue in July 2018. The Board acknowledges the April 2021 argument of the Veteran’s representative that a remand is necessary to allow the Veteran the “opportunity to complete the individual unemployability questionnaire.” The Board notes, however, that in August 2019 the Veteran completed a VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability. There is no suggestion that the Veteran’s employment situation has changed since that time and, in any case, he is free to provide a supplemental form at any time. He has not chosen to do so. As such, the Board finds that a remand is not required. Entitlement to TDIU It is the established policy of VA 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is 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, such disability shall be ratable as 60 percent or more and 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 these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background, including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. For the applicable appellate time period prior to June 16, 2020, the Veteran’s service-connected disabilities include right knee dislocation of semilunar cartilage, rated as 20 percent disabling from October 16, 2011, to March 28, 2012; peripheral lattice defect of the right eye, with slight loss of visual field, rated as 10 percent disabling; hypertension, rated as 10 percent disabling; limited of right knee flexion and extension, both rated as 10 percent disabling from October 16, 2011, to March 28, 2012; right knee injury residuals, rated as 10 percent disabling prior to March 28, 2012, and from May 1, 2012, and as 100 percent disabling for the intervening period; sinusitis, rated as noncompensably disabling; and vitiligo in the right knee, rated as noncompensably disabling. The Veteran’s combined disability rating is 50 percent prior to March 28, 2012, 100 percent from March 28, 2012, to May 1, 2012, and 30 percent from May 1, 2012. The temporary 100 percent rating period for the right knee is not on appeal, as it is the maximum schedular rating available and there is no indication that the Veteran’s service connected disabilities other than the right knee disability prevented the Veteran from working. Cf. Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Veteran does not meet the schedular criteria for TDIU at any time on appeal. As such, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b). See Bowling, 15 Vet. App. at 1. For a Veteran to prevail on a claim for entitlement to TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant 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 he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board finds no evidence of record suggesting that the Veteran’s case is outside the norm requiring extraschedular consideration. In August 2010, a VA treatment record noted that the Veteran would benefit from participation in a weight management program, but the Veteran declined due to issues with work. In March 2012, the Veteran had a right knee injury. In May 2012, the Veteran still was unable to return to work from the right knee injury. In September 2012, the Veteran had full right knee extension and flexion to 100 to 105 degrees. At that time, the Veteran was noted to be able to do a seated job with limited standing. During an April 2013 VA knee examination, the Veteran discussed his March 2012 right knee injury. At the time of examination, the Veteran had pain and stiffness in the knee. He used a cane constantly and sometimes used a brace. The Veteran did not drive a car due to the pain. Right knee range of motion was from 0 to 90 degrees. There was pain throughout the arc of motion, but there was no further loss of motion with repetitive use testing. Muscle strength was normal and stability testing was normal. The right knee disability would interfere with any employment requiring lifting, pushing, or carrying objects of any weight, but he could perform sedentary work, if it was of a substantial and gainful type. In March 2014, September 2014, March 2015, September 2015, and December 2015, the Veteran indicated that his occupation was teacher. At that time, the Veteran rated his physical health and occupational functioning as good. In September 2016, the Veteran rated his physical health and occupational functioning as fair. At that time, the Veteran stated that he was retired. In October 2017, the Veteran rated his physical health as poor and occupational functioning as good. During his February 2018 Board hearing, the Veteran stated that he stopped working around the time of his 2012 right knee injury and surgery. Prior to that he had been working as a security guard at a high school. The job involved a lot of walking and other activity. The Veteran had fallen once due to the right knee. He sometimes had difficulty getting up and getting out of the house due to the right knee and had problems mowing the lawn. In September 2018, the Veteran reported that he had fallen off a ladder twice, with resulting back and upper chest pain. He had been trying to get on the roof of his home when the ladder shifted on the ground. On examination, the Veteran had full range of motion and the only noted complaint was with respect to the left calf that he also had injured in the fall from the ladder. In June 2019, the rated both his physical health and occupational functioning as fair. Multiple orthopedic records include encouragement to the Veteran to continue working on his weight and to stay active. August 2019 statements from the Veteran’s friend noted that the Veteran used a walking cane and it was difficult for the Veteran to walk due to pain. An August 2019 statement from the Veteran’s wife also noted that the Veteran was in constant pain and could not do many of the things he did in the past. She stated that his knee looked like it was swollen all the time. The Veteran was afforded a VA knee examination in December 2019. The examiner diagnosed right knee degenerative arthritis, dislocation of semilunar cartilage, and right knee injury residuals. The Veteran reported constant right knee pain. He stated that he could not stand or walk for long periods of time without increased pain. The Veteran also could not bend or squat. Range of motion testing for the right knee was from 0 to 60 degrees. There was pain that caused functional loss due to pain that was 7 out of 10. There was no further loss of motion with repetitive use testing. The Veteran denied knee flare ups. He used a cane for instability. Lower extremity muscle strength was 3 out of 5 on the right, but there was no muscle atrophy or ankylosis. There was no recurrent subluxation, lateral instability, recurrent effusion, patellar dislocation, shin splints, or tibial or fibular impairment. There was a history of meniscal tear with frequent episodes of joint locking. The Veteran had to have his wife help with lots of activities of daily living. A December 2019 individual unemployability statement indicated it was at least as likely as not that the Veteran was able to perform an 8 hour workday in sedentary work that was defined as exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull. 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. A December 2019 VA addendum opinion indicated that the Veteran’s right knee degenerative arthritis was a progression of the service-connected right knee condition. Thus, the Veteran has not worked during the appellate time period. In a July 2019 claim, the Veteran reported that he had a high school education with one year of college with studies as a truck driver. There is no lay or medical evidence to suggest that any of the Veteran’s service-connected disabilities other than the right knee disability impacts his ability to work. For the period on appeal, the evidence indicates that the Veteran’s service-connected right knee disability would prevent him from working in his previously held security guard position. Multiple examination reports, however, suggest that the Veteran could work in a job environment that allowed for him to sit primarily and where he would not have to engage in significant physical activity. Thus, the Veteran could work in an environment that allowed him to primarily sit and perform light duty activities while seated. There is nothing to indicate that the Veteran could not answer phone calls as an emergency dispatcher, as a greeter or cashier at a retail store, or perform security related surveillance duties involving monitoring electronic devices. He is also experiencing in work at public schools at which he could perform administrative functions. The foregoing are just examples of the type of positions that do not appear to be affected by his service-connected disabilities for the period on appeal. The Board acknowledges that the Veteran’s service-connected right knee disability has some effect on his occupational impairment. However, the 30 and 50 percent schedular ratings recognize the industrial or commercial impairment resulting from his disabilities. Nevertheless, for the reasons and bases set forth above, the preponderance of the evidence is against finding his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.