Citation Nr: 21024127 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-01 425A DATE: April 22, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The preponderance of the evidence indicates that the Veteran’s service-connected disabilities alone do not preclude him from obtaining and maintaining substantially gainful employment consistent with his level of education, prior work history, and training. CONCLUSION OF LAW The criteria for a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1988 to March 1992. This appeal comes before the Board of Veterans’ Appeals (Board) after being remanded in May 2018 and June 2020 for further development. In May 2018, the Board found that the TDIU issue was raised by the record in the context of the Veteran’s disagreement with an initial rating for a left knee disability, for which the VA Regional Office (RO) granted service connection in a January 2012 rating decision after receiving the Veteran’s May 2011 claim for service connection. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In May 2018, the Board remanded the TDIU issue because it was intertwined with the issue concerning an increased initial rating for the left knee disability, which was also remanded. In June 2020, the Board again remanded the TDIU issue for extraschedular consideration by the Director of Compensation Service (Director). As further discussed below, the Board finds that there has been substantial compliance with the previous remands in order to allow for adjudication of the TDIU issue, to include extraschedular consideration, at this time. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to a TDIU, to include on an extraschedular basis, is denied. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of one 60 percent disability or one 40 percent disability, the following disabilities will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. Sedentary employment is not explicitly defined in VA regulations, but rather is considered on a case-by-case basis from the medical and lay evidence presented and in light of each veteran’s education, training, and work history. See Withers v. Wilkie, 30 Vet. App. 139, 149-50 (2018). The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing a veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. Additionally, the Court recently clarified that the Ray decision does not disturb the holding in Withers. The Board is not obligated to adopt the Social Security Administration’s definition of “sedentary” employment, but rather will examine the Veteran’s specific work and education history to determine if his disability picture makes it possible for him to do suitable work in light of his “physical” and “mental” limiting factors. See Rouse v. McDonough, No. 19-5699 (Vet. App. Apr. 13, 2021). Here, the Veteran has three separate service-connected disabilities that all pertain to his left knee: left knee patellofemoral pain syndrome, status post arthroscopic meniscectomy, rated as 10 percent disabling from May 23, 2011, to February 3, 2019, and 30 percent disabling from February 4, 2019; left knee instability, rated as 20 percent disabling from May 23, 2011; and left knee surgical scars, rated as noncompensable (zero percent disabling) from November 16, 2012. Thus, the Veteran does not meet the initial eligibility requirements to receive TDIU benefits on a schedular basis. See 38 C.F.R. § 4.16(a). The Veteran’s VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), received in April 2020, shows that the Veteran completed four years of college and earned an associate degree in paralegal studies and a bachelor’s degree in criminal justice. His reported past employment includes work as a paralegal, with the most ever earned in one year reported as $63,820. On this form, the Veteran also claimed: his left knee disability affected his full-time employment since May 2011; he last worked full-time in April 2015; and he became too disabled to work in April 2015. The Veteran further asserted that since 2011, his functional abilities greatly diminished, and his ability to work hindered his ability to retain jobs, given frequent doctor appointments and illnesses, all stemming from his left knee disability. The evidence for consideration includes multiple VA examinations for the left knee and other claimed conditions, treatment records, and the Veteran’s own lay statements and lay statements from multiple relatives and other associates. Additionally, since the Board’s June 2020 remand, more evidence has been made available, to include not only lay statements, but also a decision from the Director regarding extraschedular consideration. The Veteran submitted multiple lay statements from family members received in September 2011. In sum, these statements detail the Veteran’s problems with his left knee, to include pain, swelling, and walking difficulty. Additionally, these statements comment that the Veteran decided to take a job that would let him sit down and not do manual labor. The statement from his spouse commented on the Veteran being diagnosed with diabetes mellitus (DM) and stated he is unable to function properly to provide for his family. VA afforded the Veteran multiple examinations. After considering the Veteran’s left knee history, symptoms, and performing an in-person examination, a November 2011 examiner concluded that the Veteran’s left knee disability does not impact his ability to work. Additionally, that examiner reported that the Veteran himself “reports that he does not experience any overall functional impairment from this condition.” A May 2013 VA examination report addressing the Veteran’s DM shows that it impacts his ability to work because DM and/or DM-associated conditions and/or complications cause difficulty walking. The examiner clarified that there is no known connection between DM and the service-connected left knee disability. Additionally, in a June 2013 examination report for peripheral neuropathy, an examiner concluded that the impact of neuropathy on the Veteran’s “ability to work is difficulty with typing and he has to get up and walk due to discomfort in leg.” These examiners’ opinions, along with lay statements discussed below, are important in this case because they show that the Veteran has other nonservice-connected conditions that impact his ability to work, apart from his service-connected left knee disabilities. At an August 2016 knee examination, the examiner considered the Veteran’s left knee history, noting that he was largely confined to a wheelchair due to neuropathy from poorly controlled DM. The Veteran reported always having medial knee pain and falling due to the knee, but it was not clear whether the knee or the neuropathy caused the falling. However, the examiner reported, “Veteran was put into the wheelchair due to neuropathy, not the left knee.” After performing a physical examination, the examiner opined that the Veteran’s left knee disability does not impact his ability to perform any type of occupational task. In a statement received in November 2016, the Veteran refuted the August 2016 examiner’s statements, asserting that he explained he was “in a wheelchair because his left knee gives way” when he bears weight on it or attempts to walk. Further, the Veteran commented on his not being able to work for about three years because he was not able to walk and because neuropathy affected his fingers, resulting in an inability to type, carry boxes, and walk long distances, which the Veteran described as duties that were part of his paralegal work. The Veteran also asserted that his “ability to work or be employed is a direct result of the problems I have bearing weight on my knee and it giving way combined with diabetes that I now suffer due to the lack of ability to exercise . . . .” He asserted that employers have tried him for a day or two and then let him go because he cannot perform the physical tasks required on a consistent basis. A June 2018 knee examiner considered the Veteran’s statements and left knee disability and opined that the left knee disability impacted his ability to work. Another knee examiner, in a February 2019 report, also indicated that the Veteran’s left knee disability impacts his ability to perform occupational tasks and explained that the left knee limits his ability to stand. At the time of the June 2020 remand, the Board found enough evidence to warrant extraschedular consideration and referred the matter to the Director, noting that the Board is without authority to consider extraschedular TDIU in the first instance. Since the June 2020 remand, evidence added to the claims file includes recommendations from two separate authors to the Director outlining the evidence pertaining to the Veteran’s left knee and concluding that the an extraschedular TDIU should be denied. See June 2020 Administrative Decision; February 2021 VA Memo. In a March 2021 Advisory Opinion, the Director indicated consideration of the relevant evidence including but not limited to the Veteran’s education, training, and work history, and decided, “the Director of Compensation Service has determined the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevents gainful employment.” The Veteran submitted additional lay statements and photographs received in April 2021. The statements from a couple of his associates comment on his left knee, which they indicate caused the Veteran to fall on multiple occasions, resulting in multiple injuries. The statements also comment on the Veteran’s physical limitations as well as other conditions, such as headaches and depression. Consistent with these statements, the Veteran himself not only commented on how his “health continues to fail all stemming from [his] initial knee injury,” but also on how his left knee has led to other problems, to include falls with resulting injuries (shown in the submitted photographs) and mental health/depression struggles. Based on the totality of the evidence, the Board finds that entitlement to a TDIU on an extraschedular basis is not warranted. While the Veteran is currently unemployed, the entirety of the evidence does not support a finding that he is unable to obtain or maintain substantially gainful employment only due to his service-connected left knee disabilities. The Board is not bound by the Director’s March 2021 findings. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). Additionally, in Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) recognized that a referral decision under 38 C.F.R. § 4.16(b) is a factual finding, but it is based on a lower evidentiary threshold than for a grant of an extraschedular TDIU. Accordingly, the Board is also not bound by the prior June 2020 remand directive to refer the matter for Director review. Ray, 31 Vet. App. at 58 (holding that the Board’s referral decision under 38 C.F.R. § 4.16(b) does not require the Board to award an extraschedular TDIU). A closer examination of the evidence, to include recently received statements and the Director’s Advisory Opinion, shows that a denial of the benefit sought is warranted. The evidence at the time of the June 2020 remand indicated that the Veteran’s service-connected left knee disabilities had some occupational impact, such that the matter should be referred to the Director. While commenting that the Veteran’s left knee disabilities present an exceptional disability picture, the Board referred the matter to determine whether extraschedular TDIU could be granted but declined making any determinations at that time regarding employability. After a thorough consideration of the entirety of the evidence, the Board finds that the evidence does not support a TDIU on an extraschedular basis. See Ray, 31 Vet. App. at 58. Rather, the evidence shows the Veteran had physical limitations due to his service-connected disabilities, but his service-connected disabilities would not preclude the sedentary types of employment for which he has relevant training and experience. Specifically, as noted in the record, the Veteran has advanced educational degrees and legal work experience demonstrating his intellectual aptitude, and given the current nature of the American workplace that allows for computer or other less physical work, his service-connected left knee disabilities would allow for him to maintain a job that would require only light activity. As mentioned above, the Court noted that VA has not explicitly defined the meaning of “sedentary employment.” Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, “the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran’s education, training, and work history.” Id. at 149-150. Here, the Veteran’s advanced degrees and paralegal work experience support that he would be capable of performing non-physical work. Thus, looking at economic considerations, the Veteran has the education, training, skills, and work history to perform substantially gainful work in a legal setting. The Board considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. at 58. Although the Veteran has stated that his left knee disability prevents him from walking distances and carrying heavy boxes, VA examiners have either determined his service-connected left knee disability, without consideration of nonservice-connected conditions, would either not impact his ability to perform occupational tasks or would limit work in the sense that standing would be difficult. No examiner opined that the Veteran’s service-connected left knee disabilities would prevent employment. The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. While the Veteran’s statements and buddy statements comment on his mental health and depression, the Veteran is not service connected for any disability which impacts his mental functioning. The Board does not doubt that the Veteran’s service-connected left knee disabilities cause impairing symptomatology. The evidence does not support, however, that these disabilities preclude substantially gainful employment, but instead, the evidence shows that multiple nonservice-connected conditions such as DM and DM-related neuropathy significantly impact his physical abilities, which has been shown in the Veteran’s treatment records as well as by his own and others’ lay statements. Nevertheless, the issue before the Board only pertains to the impact of the Veteran’s service-connected left knee disabilities on his ability to work. Therefore, because the most probative evidence does not show functional impairment caused by the Veteran’s service-connected left knee disabilities that results in an inability to secure and maintain a substantially gainful occupation, entitlement to a TDIU on an extraschedular basis is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Santiago, 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.