Citation Nr: 21023862 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 12-16 644 DATE: April 21, 2021 ORDER Entitlement to a rating of total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence of record does not show that the Veteran is unable to secure and follow a substantially gainful occupation due to service connected disabilities. CONCLUSION OF LAW The criteria for a rating of total disability based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1963 to June 1969. This matter was previously before the Board in February 2020. At that time, the Board declined to take jurisdiction of the issue of entitlement to TDIU, noting that forthcoming increased rating claims may entitle the Veteran to schedular consideration of TDIU under 38 C.F.R. § 4.16(a). In May 2020, the Court granted a Joint Motion for Partial Remand (JMPR), reversing the Board’s prior decision and remanding the claim.  Specifically, the Court noted that the Veteran’s June 2010 Notice of Disagreement with his right knee instability rating should have been considered a claim for TDIU under Rice v. Shinseki. Subsequently, the Board issued a Remand in November 2020. Despite the absence of clear evidence of functional impairment, the Board took the Veteran’s January 2018 vocational assessment as indicative of a possible inability to perform even sedentary employment. The Board therefore referred the issue of TDIU to consider entitlement to extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b). The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, an opinion from the Executive Director of Compensation Services was obtained, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in February 2021. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Entitlement to a rating of total disability based on individual unemployability (TDIU) The Veteran seeks a TDIU rating, arguing that he is incapable of sedentary employment due to service-connected disabilities. Specifically, he argues that due to his bilateral knee disabilities, he has to get up and walk fifteen minutes for every half hour he is able to sit and work productively. In his January 2021 Appellate Brief, the Veteran contends that his knee disabilities continue to affect his daily life, but that he does not believe he has the skills to work in a sedentary position Despite this difficulty with prolonged sitting, the Board finds that the Veteran is not unable to secure and obtain substantially gainful employment due to service connected disabilities. Total disability is considered to exist when there is any impairment 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). A total disability rating for compensation purposes may be assigned based on individual unemployability 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. 38 C.F.R. § 4.16 (a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, 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 a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The phrase “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 (b) contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component requires a determination as to whether a veteran’s income exceeds the poverty threshold, as suggested by the Secretary. The noneconomic component requires a determination as to a veteran’s ability to secure and follow such employment. The Court in Ray set forth certain factors that may be appropriate in making such a determination. First, attention should be given to the veteran’s history, education, skill, and training. Second, consideration of the veteran’s physical ability is necessary, with possible relevant factors including the veteran’s limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Finally, considerations should be given to the veteran’s mental ability, including their limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. In this case, the Board determines that TDIU cannot be granted for the period on appeal. The Veteran’s service connected disabilities do not preclude substantially gainful employment The Veteran’s service-connected disabilities consist of right knee degenerative joint disease, rated at 20 percent disabling, left knee chondromalacia with instability, rated at 10 percent, left knee arthritis, rated at 10 percent, and right knee instability, rated at 10 percent. The Veteran’s combined rating for the appeal period is 50 percent. Therefore, he does not meet the schedular criteria. In any event, regardless of whether the Veteran now meets the standards enunciated in 38 C.F.R. § 4.16(a), TDIU is not warranted, as any inability of the Veteran to secure or follow a substantially gainful occupation is not a result of his service-connected disabilities. See 38 C.F.R. § 4.16(b). Specifically, his disabilities did not preclude employment, to include sedentary employment. As an initial matter, the evidence does not suggest, nor does the Veteran assert, that his service connected disabilities impaired his mental acuity. The January 2018 vocational assessment report calls attention to the Veteran’s inability to maintain work as an airline baggage clerk due to not being trained on the operation of the computer system. Nonetheless, the lay and medical evidence does not indicate an inability to learn this or other computer systems, and certainly not on account of his service-connected knee disabilities. Nevertheless, he asserts that consideration of his completing only two years of college, his history of physical labor, and his physical disabilities, warrants TDIU. The Veteran retired from USPS in 2003. He then worked at an airline from 2003 to 2004, and as a university mail carrier from 2006 to 2009. He argues that his university employment was not gainful, as earnings were sporadic and marginal. In fact, the most he earned during this period was in 2007, just $400 more than poverty threshold. The had to quit working altogether in 2009, due to increasing limitations imposed by his knee disabilities. Thus, the Board acknowledges the medical and lay evidence indicating a work impairment due to the Veteran’s knee disabilities. However, the Board finds that the Veteran is not unemployable by virtue of his knee disabilities. Specifically, while the Veteran has not worked since 2009, sedentary work is not precluded by his service-connected disabilities. While the Board and VA are not beholden to a particular definition of “sedentary” employment, some explanation of the term is necessary here. The SSA definition The SSA states that “sedentary work” involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” See 20 C.F.R. § 404.1567(a). As alluded to above, in defining “sedentary,” the Court in Ray v. Wilkie called attention to SSA factors when the evidence raised them. For example, climbing, grasping, typing, and reaching, as well as auditory and visual limitations and as relevant to the Veteran, lifting, bending, sitting, standing, and walking. In this case, the evidence indicates that the Veteran is not incapable of sedentary employment by virtue of his service connected knee disabilities. The Board notes clear physical impediments to work. From the beginning of the appeal period – for example his July 2010 C&P exam – the Veteran has demonstrated flare-ups of his knee disabilities, triggered by physical activity. VA examinations from 2012, January 2016, and February 2016 indicate an inability to bend and climb. Moreover, the VA assessment completed in January 2018 demonstrates the Veteran’s inability to sit in one place for more than 30 minutes without getting up to walk for 15 minutes. standing more than 30 minutes, walking more than 20 minutes, and lifting more than 10 pounds. Driving even limited distances and getting in and out of car presents a great difficulty. The Veteran cannot squat, crouch, or crawl. As pointed out by the Veteran’s attorney, the VA examiners asserting that sedentary employment is not precluded have not been trained to render a vocational disability opinion. To the extent such examiners are competent to determine employability, their negative opinion as to functional impact of knee conditions conflicts with the Veteran’s competent self-report of his inability to work in seated and “non-consecutive days” work. However, the Board finds that the Veteran’s service-connected disabilities do not render him incapable of “sedentary employment” as defined above. Specifically, the Veteran’s inability to remain seated for more than 30 minutes without a 15 minute break does not render him completely incapable of performing work that does not require the level of exertion outlined above. The Board notes that with the Veteran’s current sitting limitations, it would take him twelve hours to complete an eight hour workday. While inconvenient, this limitation does not render him incapable of sedentary employment. To the extent that the Veteran’s March 2018 C&P examiner opined that he is incapable of sedentary employment, that opinion reflects no reasoning or explanation. Accordingly, it is of limited probative value in determining the Veteran’s employability. Moreover, as noted in the Director of Compensation Services’ February 2021 opinion, the modern workplace does not require as much exertion as it used to. More importantly, given the availability of reasonable accommodations under the Americans with Disabilities Act, and the wide spectrum of available jobs in the economy, the Board finds that an inability to sit in an office for an eight hour workday should not altogether preclude substantially gainful employment. The competent evidence of record does not show that the Veteran’s service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevents gainful employment. The evidence does not show that the Veteran is precluded from sedentary employment with accommodations for his right knee degenerative joint disease, left knee chondromalacia with instability, left knee arthritis, and right knee instability. Finally, the fact that even a medical professional finds a Veteran unemployable due to a service-connected disability is not dispositive, as the Board has ultimate responsibility for determining whether a veteran is unemployable. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In so deciding, the Board recognizes the Veteran’s arguments, submitted September 2020, that remand is inappropriate because the Board can decide extraschedular TDIU in the first instance. Counsel also relates that because Section 4.16 does not justify remand for referral under AMA, there is no basis for a remand in the Legacy. Counsel seems to believe that because the Board can grant an extraschedular TDIU in the first instance, that it should do so here. While the Board is able to grant extraschedular TDIU in the first instance where warranted, the Veteran in this case is not unable to secure and follow a substantially gainful occupation due to service-connected disabilities. As such, a TDIU rating cannot be awarded. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia