Citation Nr: 21024317 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-31 060 DATE: April 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) from October 28, 2011 (excluding a period of a temporary total rating from December 4, 2013 to March 31, 2014) is granted, subject to controlling regulations governing the payment of monetary awards.   FINDING OF FACT The Veteran’s service-connected disabilities preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him.   CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) from October 28, 2011 (excluding a period of a temporary total rating from December 4, 2013 to March 31, 2014) are met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16(b).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1982 to January 1985. This matter initially came to the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied entitlement to a TDIU. In July 2019, the Board remanded for referral the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) to the Director of Compensation Service. Entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b)  VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.   If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 C.F.R. § 4.16(a).  The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The Board must evaluate whether there are circumstances in the veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).   In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic.  The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.  The non-economic component includes consideration of the following: the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.   A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a).  TDIU is warranted under 38 C.F.R. § 4.16(b) if it is established by the evidence of record that service-connected disabilities render the veteran unable to secure and follow substantially gainful employment.  Although the Board may not assign an extraschedular rating in the first instance, it may assign one on appeal of a determination by the Director of Compensation Service.   The Veteran does not meet the criteria for TDIU pursuant to 38 C.F.R. § 4.16(a) in that he did not have a single disability rated 60 percent or higher or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  The Veteran is in receipt of a 20 percent disability rating for a service-connected right knee injury with patellofemoral syndrome and traumatic arthritis, effective August 30, 2000, and a 20 disability percent rating for a service-connected left knee injury with patellofemoral syndrome and traumatic arthritis, effective August 20, 2000. The Veteran’s combined disability rating is 40 percent from August 20, 2000. The Veteran also received a temporary 100 percent rating for his service-connected left knee and a temporary 100 percent combined disability rating under the provisions of 38 C.F.R. § 4.30 from December 4, 2013 to March 31, 2014 due to left knee ACL reconstruction surgery requiring at least one month of convalescence. Subsequently, both ratings were lowered to their pre-surgery levels (20 percent and 40 percent, respectively), effective April 1, 2014. Here, as discussed in the introduction, the case was forwarded to the Director of Compensation in response to the Board’s July 2019 remand.  In September 2020, the Director concluded that entitlement to a TDIU on an extraschedular basis was not warranted.  The Director found that the overall evidence did not support the contention that the service-connected disabilities supported an exceptional situation that prevented gainful employment.  The Board may now consider the issue on the merits, de novo, with the Director’s decision being in essence the de facto decision of the Agency of Original Jurisdiction (AOJ) and, as such, not evidence.  Wages v. McDonald, 27 Vet. App. 233, 238-239 (2015).   For the following reasons, a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is warranted from October 28, 2011 (excluding a period of a temporary total rating from December 4, 2013 to March 31, 2014).  In October 2011 correspondence, the Veteran indicated that he could not work in the job that he used to because of his knees. On Veteran’s April 2012 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran indicated that he completed high school and three years of post-high school college education. He additionally reported that he has not worked full-time since September 2009. Prior to that, the Veteran worked in jobs involving physical labor, to include employment working on an assembly line, driving a cab, stocking, and painting. In an April 2012 Statement in Support of Claim (VA Form 21-4138), the Veteran reported that he was unable to work for the previous year and half. The Veteran noted that he used to be employed in physical work, but he could no longer engage in any kind of physical labor because he could not carry or stand for long periods of time. In April 2012, a VA examiner found that the Veteran’s bilateral knee disabilities impacted his ability to work. The examiner found that the Veteran could not work in jobs requiring climbing or kneeling due to pain in both knees, but he could engage in light sedentary work. In January 2015, the Veteran reported during a VA examination that he experienced functional loss or functional impairment due to his bilateral knee disabilities of limited standing and walking. The VA examiner found that the Veteran’s bilateral knee disabilities impacted his ability to work in that he stopped working as a cab driver due to his bilateral knee disabilities. The Veteran’s prior employment required him to engage in manual labor that involved standing, climbing, and kneeling, to include painting, stocking, and working on an assembly line. With his significant disabilities in both of his knees, the Veteran is unable to complete job duties that he is qualified for due to his educational and occupational background. In this regard, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”).  (Continued on the next page)   For the foregoing reasons, the Veteran’s service-connected disabilities render him unable to obtain and maintain substantially gainful employment. Thus, entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is warranted from October 28, 2011 (excluding a period of a temporary total rating from December 4, 2013 to March 31, 2014). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, Associate 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.