Citation Nr: 21024071 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 12-14 111 DATE: April 22, 2021 ORDER Entitlement to a total disability rating for compensation based on unemployability of the individual (TDIU) prior to January 6, 2016 is denied. FINDING OF FACT The Veteran’s service-connected disabilities did not preclude him from securing and following a substantially gainful occupation prior to January 6, 2016. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating prior to January 6, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1977 to May 1997. The issue of TDIU was raised in connection with an increased rating claim for the Veteran’s left knee condition. The Veteran’s left knee condition was before the Board of Veteran’s Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans’ Affairs (VA) Regional Office (RO). The Veteran timely appealed and in March 2015 the Board inferred the claim for TDIU as raised by the record and remanded for further development. The Board then remanded the claim for TDIU again in November 2018 for completion of all scheduled VA examinations. While on remand, in March 2021, the RO granted entitlement to TDIU effective January 6, 2016. This is considered a partial grant of benefits sought as the grant does not encompass the entire appeal period for the Veteran’s claim of entitlement to an increased disability rating for his left knee condition. 1. Entitlement to a total disability rating for compensation based on unemployability of the individual prior to January 6, 2016. The question currently before the Board is whether the Veteran, due to his service-connected disabilities, is precluded from securing or following substantially gainful employment. As stated above, the Veteran was granted service connection for a TDIU in March 2021, effective January 6, 2016. However, the Veteran’s appeal period for his increased rating claim for the left knee condition begins March 25, 2010 (the date of claim for increased rating for the left knee). As a result, the Board must adjudicate whether a TDIU from March 25, 2010 to January 5, 2016 is warranted. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Upon review of the evidence of record for the period on appeal, the Board finds there is no evidence to support entitlement to a TDIU from March 25, 2010 to January 5, 2016. To qualify for a total rating for compensation purposes, the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. To determining if there is one 60 percent disability or one 40 percent disability in combination, multiple disabilities arising from the same etiology are counted as one disability. 38 C.F.R. § 4.16(a). From March 25, 2010, the Veteran has been in receipt of service connection for left knee instability rated 20 percent disabling; residuals of status post partial meniscectomy, left knee rated at 20 percent; hallus vagus, left foot, status post osteotomy rated at 10 percent; hallus vagus, right foot, status post osteotomy rated at 10 percent; and arthritis with painful limited motion of the left knee rated at 10 percent. To determine the Veteran’s combined rating, Table 1 under 38 C.F.R. § 4.25 is consulted and shows his combined disability rating throughout the period on question is only 53 percent which is then rounded down to 50 percent. However, the Veteran has multiple disability ratings that result from an injury to both the right and left leg. As a result, under 38 C.F.R. § 4.26, 10 percent of the value will be added to his combined total. The Veteran’s 53 percent with an additional 10 percent added brings the Veteran’s combined disability rating to 60 percent. As the Veteran’s combined disability rating is only 60 percent, and there is no single disability rated 60 percent disabling, he does not meet the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). Notwithstanding, 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(b). In considering entitlement to individual unemployability, the pertinent inquiry is whether service-connected disabilities individually or in combination are of sufficient severity to produce unemployability - not whether a Veteran is unemployable solely due to his service-connected disabilities. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). The Board finds that there is no evidence of record to support a finding that the Veteran was unable to secure and follow a substantially gainful employment due to his service-connected disabilities prior to January 6, 2016. As a result, referral for an extraschedular rating is not warranted. 38 C.F.R. § 4.16(b). The March 2015 Board decision inferred a claim for TDIU based on the evidence of record in connection with the Veteran’s claim for in increased disability rating for his left knee condition. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The March 2015 Board decision based this inference on the Veteran’s assertion during his April 2010 VA examination where he stated that if the condition of his knees and feet improved, he would be able remain at his post office job. However, during that April 2010 VA examination the Veteran reported he was then currently working as a “postal worker.” The Veteran did state he was concerned about his occupation but also stated he would be able to continue working if he could secure a position where he would sit down for longer periods. The Veteran did not report missing any work due to his knee condition but did indicate he experienced pain at work. The Veteran reported being employed as a postal worker in March 2010 and April 2010 in VA outpatient records. In a June 2010 VA outpatient record the Veteran had been off duty as he recovered from a back surgery, and the provider approved his return to light duty work. However, the Veteran was not service-connected for any back disabilities at this time so this time off was not due to a service-connected disability. In a December 2011 and May 2012 VA outpatient records, the Veteran reported that his general body pain affects his work productivity, but he did not indicate an inability to work or specify where the pain was coming from. Additionally, in December 2012 the Veteran underwent a VA examination of his right knee. During this examination the Veteran did not report any symptoms that precluded him from working nor did he indicate he was not employed. Additionally, the examiner noted that the Veteran’s “knee and/or lower leg condition” did not impact the Veteran’s ability to work. In his VA outpatient records from March 2013, the Veteran reported having been unemployed for a year prior to the date of examination. The Veteran did not report a reason as to why he was not currently employed. In September 2013 he reported looking for work as he was no longer employed at the post office. In his October 2013 VA outpatient records, the Veteran reported that he was still looking for work but felt he was not being hired due to his age. The provider also noted “problem solved for employment difficulty (retirement or returning to school).” In November 2013, the Veteran reported having temporary work such as painting houses. He stated he was “motived to work or look for work daily” as painting houses hurt his back. In December 2013 the Veteran again reported he could not find work and was considering going back to school. However, in January 2014, the Veteran reported obtaining a part time job as a bus driver for a local school district. In December 2015, the Veteran underwent a social and industrial survey. The Veteran reported completing high school and some college. He also reported that he obtained a job immediately after his return from service and has “partially retired at the age of 68 from the [United States Post Service] USPS.” The Veteran also reported still being employed at USPS in 2013 despite his March 2013 assertion in his VA outpatient records that he had been without work since about March 2012. The Veteran reported he had worked at USPS earning $50,000 per year from 2000 to 2013. The examiner noted that the Veteran was then currently employed as a local school bus driver part-time, but he was also strongly considering retirement. The examiner further noted, “occupational problems: none indicated, the Veteran is currently employed.” The examiner concluded that the “Veteran’s occupational functioning is not significantly impaired at this time as he is employed” but did note some personality characteristics and mood disorder symptoms that impact his ability to maintain employment. However, during this period the Veteran was not service connected for any psychological disabilities. In November 2018, after the period on appeal, the Veteran submitted a TDIU application. The Veteran indicated that his “heart disease, lumbar spine, bilateral foot, bilateral radiculopathy, and bilateral knee[s]” prevented him from securing or following any substantially gainful occupation. However, no additional information was provided by the Veteran regarding the specific issues caused by his service-connected disabilities that resulted in his inability to obtain or following substantially gainful employment. Additionally, he was not service connected for a heart condition nor radiculopathy during the period on appeal before the Board today. The Veteran reported making about $5,000 per month while employed with USPS. No information regarding the Veteran’s part time bus driver position was given despite reporting he was employed as such in the December 2015 survey. The Veteran identified November 29, 2013 as the last day he worked full-time. With his TDIU claim, the Veteran submitted a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). The form was completed by USPS and indicated that the Veteran had worked there from December 4, 1999 to November 29, 2013. However, it was also reported that the Veteran’s last day in pay status was April 30, 2012, and “N/A” was the amount earned during the 12 months preceding the last date of employment. The Veteran was officially released on January 30, 2014 for “irregular attendance.” It appears that the Veteran was not paid for the last year of his employment with USPS but the reason for this is unclear. Reviewing the evidence as a whole, it appears as though the Veteran was still technically an employee of USPS during 2013 but was not working for or earning income from them. During this time, he reported in VA treatment records that he was actively looking for work and doing some short term jobs like painting houses before he secured the bus driver job. In summary, throughout the entire period prior to January 6, 2016, the Veteran did not assert that any of his then-service-connected disabilities precluded him from obtaining work. He has not submitted any argument on his behalf nor made any statements asserting that his service-connected disabilities, including his left knee and bilateral feet, precluded him from employment prior to January 6, 2016. The Veteran did feel he was unable to find work due to his age but did not reference any service-connected disabilities. Additionally, the Veteran notes a number of issues with his back during this period; however, he was not service-connected for a back condition at this time. The Veteran also considered changing employment to better accommodate his physical limitations but at no time reported he was unable to work because of them. The record does not support a finding that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities prior to January 6, 2016. The record supports that the Veteran was gainfully employed through at least April 30, 2012. The Veteran is competent to report on his employment history but his statements regarding his periods of employment are internally inconsistent and inconsistent with other evidence of record. As a result, they are not credible to establish an inability to secure or maintain employment during the appeal period. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The applicable medical and lay evidence does not establish that the Veteran’s service-connected left knee or bilateral foot disabilities produced symptoms of such severity to preclude all forms of substantially gainful employment at any time during the appeal period. Evidence of record shows the Veteran was employed and being paid by USPS through at least April 2012 and he reported working as a bus driver as late as December 2015 with no termination date provided. The only reasons given for difficulty finding employment were age and non-service-connected disabilities. Based on the evidence of record, the Veteran was able to secure or follow a substantially gainful occupation despite his service-connected disabilities prior to January 6, 2016. Referral for extraschedular consideration is not warranted. 38 C.F.R. § 4.16(b). The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, S. Conti 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.