Citation Nr: 21024378 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 11-29 229 DATE: April 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), including on an extraschedular basis, is denied. FINDINGS OF FACT 1. The record evidence shows that service connection only is in effect for status-post right total knee arthroplasty with mild osteogenesis of the surrounding bony structures to the right knee prosthesis (right knee disability), rated as 30 percent disabling. 2. The record evidence does not reflect that the Veteran has been unable to secure or follow substantially gainful employment as a result of his service-connected right knee disability. CONCLUSION OF LAW The criteria for entitlement to a TDIU, including on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1976 to March 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his October 2011 substantive appeal, the Veteran requested new VA examinations, or in the alternative, to appear at a Board hearing. He was scheduled for a hearing in March 2012; however, on the day of his scheduled hearing, he submitted a statement to request that the hearing be cancelled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2019). By way of background, this matter previously was before the Board in November 2017 and June 2019 when it was remanded for additional development. Entitlement to a TDIU, including on an extraschedular basis, is denied. At the outset, the Board notes that the Veteran filed his claim for entitlement to a TDIU in March 2009. He states that he has been unable to obtain and maintain substantially gainful employment due to his service-connected disability. To this end, the Board notes that service connection only is in effect for a right knee disability, rated as 30 percent disabling effective December 1, 2006. Thus, the Veteran has not met the schedular criteria for a TDIU for the entire period on appeal. See 38 C.F.R. § 4.16(a) (2019). As the Veteran did not meet the schedular criteria, the Board remanded the appeal for referral to the Director of Compensation Service (Director) in June 2019 for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b). See 38 C.F.R. § 4.16(b) (2019). In February 2021, the Director reviewed the record and opined that entitlement to an extraschedular TDIU was not warranted because the evidence failed to support the contention that the Veteran’s service-connected right knee disability prevented gainful employment. The Board notes that the Director’s opinion is not dispositive and is reviewable by the Board. See Ray v. Wilkie, 31 Vet. App. 58, 62 (2019); see also Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that the Director does not have nonreviewable discretion and the Board has the jurisdictional authority to review the Director’s extraschedular decisions). Turning to the evidence of record, a February 1997 SSA decision shows that the Veteran was found to be disabled as of October 20, 1995. Specifically, SSA determined that the diagnosed right knee osteoarthritis, bilateral hand arthritis, alcoholism, and chronic right elbow tendonitis imposed significant limitations on his ability to perform basic work activities. SSA further determined that, although the record was replete with references to his alcohol use, he had not been diagnosed with alcohol addiction, and in any event, the right knee arthritis with inability to bear weight on the knee would persist even if he were completely abstinent from alcohol. As such, SSA determined that the alcohol abuse was not a material contributing factor to the disability determination. In addition, SSA noted that he had an 8th grade education which was acquired in his native Puerto Rico. The Veteran submitted a report of continuing disability interview dated in March 2000 in conjunction with his claim for SSA benefits. During the interview, he reported that he was receiving SSA disability benefits for an asthmatic condition, right hand arthritis, left hand swelling, left elbow numbness and arthritis, a back condition, bilateral foot arthritis, and for multiple surgeries related to his right knee. The Board recognizes that, prior to the period on appeal, the service-connected right knee disability was assigned temporary total evaluations based on treatment requiring convalescence from March 27, 1979 to July 31, 1979, June 18, 1981 to July 31, 1981, and from October 19, 2005 to November 30, 2005. The Board also recognizes that the Veteran underwent a total right knee arthroplasty in October 2005 and the last period of convalescence was granted for recovery from that surgery. In his May 2009 formal TDIU claim, the Veteran stated that all of his service-connected disabilities prevented him from securing or following any substantially gainful occupation. He reported that he last worked full time in construction as a laborer for Premia Roofing. He stated that he worked in this position from 1979 to 1999. In addition, he reported that he only completed 8th grade and denied having any other education or training before or after he became too disabled to work. He also indicated that he had tried to obtain employment since he became too disabled to work and noted that he had been receiving medical treatment and SSA disability benefits due to all of his disabilities and operations. In support of his claim, the Veteran submitted a medical opinion from Dr. R. A. C. dated in March 2009. Dr. R. A. C. noted that the Veteran initially injured his right knee during service and subsequently developed his current, service-connected right knee disability, which had required three surgeries as of the date of the opinion. This physician reported that the Veteran had difficulty ambulating and performing any physical activity that required the use of his legs. She further noted that the Veteran had been diagnosed with arterial hypertension, type II diabetes mellitus, dyslipidemia, and bronchial asthma and that he experienced constant knee, back, and hip pain. She opined that these conditions, which she stated were cause by or otherwise etiologically related to the Veteran’s service-connected right knee disability, caused him to become too disabled to work. The Board notes here that subsequent VA medical opinions and VA decisions, to include the June 2019 Board decision, determined that the additional claimed disabilities referenced in Dr. R. A. C.’s March 2009 private medical opinion were not caused or aggravated by the Veteran’s service-connected right knee disability. The Veteran underwent a VA joints examination in July 2009. During the examination, he reported that he retired from his usual occupation as a roofer in 2001 due to medical and physical problems, to include asthma, diabetes mellitus, gout, hypercholesterolia, high blood pressure, and arthritis. Following the examination, the examiner determined that the diagnosed knee disabilities, to include right knee posttraumatic degenerative osteoarthritis status post meniscectomy and left knee degenerative joint disease, prevented him from doing chores and participating in sports and severely affected is ability to exercise and travel. In addition, the bilateral knee disabilities were found to moderately effect his ability to shop, bathe, dress, use the bathroom, drive, and engage in recreational activities and to mildly effect his ability to groom himself. The examiner found similar degrees and types of impairment attributable to nonservice-connected bilateral hip pain, bilateral ankle pain, and lumbar degenerative joint disease. In addition, similar degrees and types of impairment were recorded in the Veteran’s January 2010 VA spine examination with regard to his nonservice-connected cervical myositis. VA treatment records dated in December 2013, January 2014, February 2018, December 2019, and January 2020 show that he was functionally independent and/or without apparent limitations. The Veteran underwent a VA examination for knee and lower leg conditions in March 2017. During the examination, he endorsed continued intermittent pain with ambulation at his knee joints which was worse during cold weather and periods of prolonged ambulation activities. Following the examination, the examiner found that the service-connected right knee disability and diagnosed left knee osteoarthritis limited his ability to perform occupational tasks, to include tasks that would require pushing or pulling handling, prolonged standing, and prolonged ambulation activities. An October 2017 primary care follow-up note shows that the Veteran’s persistent low back pain was improved with medication. He reported that he was working more cutting branches and trees due to Hurricane Maria. The Veteran underwent a VA examination for a claimed acquired psychiatric disorder in May 2018. The examiner determined that he did not have, and had never been diagnosed with, any mental disorders, and no evidence of thought or cognitive impairment was noted on examination. During the examination, he reported that he worked on top roofing for 30 years after he was discharged from service. He stated that he retired due to physical disability and had been collecting SSA disability benefits since 2000. In January 2020, the Veteran stated that he enjoyed sight-seeing, taking care of his pets, gardening, and going on field trips around the community. He stated that he had not gardened in the preceding month due to left knee pain. A January 2020 occupational therapy evaluation and management note dated one day later shows that he reported that he participated actively in household chores, financial management, and self-medication prior to a left knee surgery. He was able to drive to church, shopping, and to the supermarket and post office. On examination, range of motion in the right lower extremity was within functional limits. In a February 2021 determination, the Director found that the Veteran’s service connected disability did not prevent him from obtaining and maintaining gainful employment. In this regard, the Director noted that he was 30 percent service-connected for status-post right knee arthroplasty and had had an eighth grade education with work experience in construction labor. She further noted that he last worked full-time in 1999 and the medical evidence showed limitations in his ability to push and pull and to stand and walk for extended periods of time. The Director found no evidence showing that the service-connected disability would render him unable to perform sedentary employment with reasonable accommodations with frequent positional changes from standing to sitting. She noted that there were many jobs that required only light activity and that technological advances, to include communication devices and adaptive equipment have broadened opportunities for individuals with disabilities with reasonable accommodations that were not previously available. The Director determined that there was no evidence of inability to perform sedentary employment with reasonable accommodations, to include frequent positional changes from sitting to standing and found that the Veteran was capable of performing the physical and mental acts of employment. In other words, she found that the available evidence did not support the contention that the service-connected disability alone prevented all types of gainful activity and concluded that TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) should be denied. After a thorough review of the evidence of record, the Board finds that the preponderance of the evidence shows that the functional limitations imposed by the Veteran's service-connected right knee disability alone do not render him unable to perform the mental or physical tasks necessary to follow a substantially gainful occupation. The Board recognizes that the Veteran's service-connected right knee disability limits his ability to obtain and maintain the types of physical work he can perform by precluding him from work that would require him to push and pull or to sit or stand for prolonged periods of time. Nevertheless, the Board agrees with the Director’s February 2021 determination and finds that the service-connected disability did not preclude him from performing sedentary employment with reasonable accommodations, to include frequent positional changes from standing to sitting. In reaching this conclusion, the Board has considered Dr. R. A. C.’s March 2009 medical opinion and the VA examination findings in July 2009 and January 2010. The Board affords these opinions reduced probative value as they were based, at least in part, on impairment caused by the nonservice-connected disabilities. More importantly, the Board finds that these opinions are outweighed by the more probative evidence of record, to include VA treatment records dated in December 2013, January 2014, February 2018, December 2019, and January 2020, which found the Veteran to be functionally independent and without limitation and the February 2021 Director’s determination. The Board next acknowledges that the Veteran was deemed disabled by SSA due to his multiple severe impairments, such as right knee osteoarthritis, bilateral hand arthritis, alcoholism, and chronic right elbow tendonitis. The Board is not bound by any determination of SSA and cannot consider the impact of the nonservice-connected disabilities on his employment. As such, the Board affords little probative value to the SSA decision. The Board recognizes that the Veteran’s highest level of education was eighth grade. The evidence of record does not show any impairment of his mental ability that would inhibit his ability to perform the type of activities required in an occupation, such as impaired memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. To the contrary, the March 2018 VA examiner found that the Veteran did not have, and had never been diagnosed with, a mental disorder, and no evidence of thought or cognitive impairment was found. Thus, the Board finds that the Veteran’s level of education does not render him unemployable, and finds that his symptoms, taken together, do not indicate that he would be unable to obtain and maintain employment. The Board is sympathetic to the Veteran's assertions regarding the impact of his right knee disability both professionally and personally. Those problems are compensated by the schedular rating assigned for his service-connected disability. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while the right knee disability has caused some economic impairment, his assigned disability rating contemplated his level of occupational impairment. A TDIU claim is not purely a medical question. Here, the Board has considered both the relevant medical evidence, as well as the non-medical evidence such as work history, education, and lay evidence. In summary, because the preponderance of the evidence is against finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected right knee disability, the TDIU claim is denied. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, 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.