Citation Nr: 21024681 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 14-02 471 DATE: April 23, 2021 ORDER From October 3, 2011, to May 16, 2013, entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. From July 1, 2014, entitlement to TDIU on an extraschedular basis is denied. FINDINGS OF FACT 1. From October 3, 2011, to May 16, 2013, the Veteran’s service-connected right knee disabilities prevented him from securing and maintaining substantially gainful employment. 2. From July 1, 2014, the Veteran’s service-connected right knee disability did not prevent him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for TDIU, on an extraschedular basis, from October 3, 2011, to May 16, 2013, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.25. 2. The criteria for TDIU, on an extraschedular basis, from July 1, 2014, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1969 until his honorable discharge in November 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Jackson, Mississippi, Regional Office (RO) of the United States Department of Veterans Affairs (VA). Entitlement to TDIU was raised by the Board in a June 2018 remand order as part of the underlying claim for an increased rating for service-connected right knee disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In June 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) who is no longer with the Board. In September 2020, the Veteran declined to appear at a hearing before another Veterans Law Judge. In June 2018, the Board remanded the claim for TDIU to the RO for additional factual development. Following completion of the directed development and return of the case to the Board, in a February 2021 order, the Board again remanded the claim for TDIU to the RO. This time, the Board instructed the RO to refer the Veteran’s claim for TDIU to the Director of Compensation and Pension Service (Director) for extraschedular consideration under 38 C.F.R. § 4.16(b), which the RO accomplished. The case now returns to the Board for adjudication. Evidentiary Standards The personalized nature of TDIU determinations is evident from the title of 38 C.F.R. § 4.16: “Total disability ratings for compensation based on unemployability of the individual.” (Emphasis added). In deciding TDIU claims, it is the Board’s responsibility to evaluate the entire record on appeal, giving due consideration to all pertinent medical and lay evidence. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. TDIU TDIU may be awarded on a schedular basis under 38 C.F.R. § 4.16(a) or an extraschedular basis under 38 C.F.R. § 4.16(b). According to 38 C.F.R. § 4.16(a), a veteran who does not qualify for a schedular 100 percent disability rating may be entitled to TDIU if the veteran is unable to secure and follow substantially gainful employment by reason of his or her service-connected disabilities and: 1) The veteran has one service-connected disability rated at 60 percent or more; or 2) The veteran has two or more service-connected disabilities, at least one of which is rated at 40 percent or more, and the combined rating of all service-connected disabilities is 70 percent or more. If the veteran meets the foregoing schedular criteria, then the Board will inquire whether the veteran is unable to secure and follow substantially gainful employment by reason of his or her service-connected disability. 38 C.F.R. § 4.16(a). When the veteran does not meet the schedular criteria listed in 38 C.F.R. § 4.16(a), but a “rating board” determines that the veteran may be unemployable due to his or her service-connected disabilities, the rating board is required to refer the matter to the Director for consideration of extraschedular TDIU in the first instance. 38 C.F.R. § 4.16(b). The “rating board” includes the Board of Veterans’ Appeals. Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (citation omitted). “[T]he initial extraschedular referral decision under [section] 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is [unable to secure and follow a substantially gainful occupation] by reason of his or her service-connected disabilities.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019); see Wages, Vet. App. at 236. Whether “the evidence nevertheless shows that a veteran is [unable to secure and follow a substantially gainful occupation] by reason of his or her service-connected disabilities” is the question to answer in the adjudication stage of assigning an extraschedular disability rating. Ray, 31 Vet. App. at 66. For VA purposes, the term “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. “Substantially gainful employment” includes an economic component; that is, 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. Ray, 38 Vet. App. at 72; 38 C.F.R. § 4.16(a). It also includes a non-economic component; that is, whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ray, 38 Vet. App. at 73. When determining whether a veteran can “secure and follow substantially gainful employment,” the Board, as appropriate, should consider: 1. The veteran’s history, education, skill, and training; 2. Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (i.e., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and 3. Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. (citations omitted). The Board is precluded from considering the Veteran’s age, previous unemployability status, and impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.17, 4.19; see Pederson v. McDonald, 27 Vet. App. 276, 286. The ultimate issue of whether TDIU should be awarded is not a medical issue; rather, it is a determination for the adjudicator based on all individualized facts and circumstances. Id. at 72, 75‒76. Analysis Schedular TDIU The Veteran does not meet the required schedular criteria for TDIU under 38 C.F.R. § 41.6(a) during the entire appeal period. The Veteran’s claim for TDIU stems from the May 2012 rating decision addressing the Veteran’s right knee disabilities. That rating decision, in turn, relates to a claim filed on October 31, 2011. The Veteran’s service-connected disabilities (and associated ratings) from October 31, 2011, to the present are: • Right knee traumatic arthritis postoperative medial meniscectomy s/p total knee arthroplasty o 10% from 05/25/1988 o 100% from 05/16/2013 o 30% from 07/01/2014 • Right knee semilunar cartilage dislocation with effusion and pain o 20% from 10/31/2011 to 05/16/2013 • Right knee instability associated with traumatic arthritis o 10% from 03/22/2005 to 05/16/2013 • Right knee surgical scar sp total knee arthroplasty o 0% from 05/16/2013 o 0% from 08/13/2018 The Veteran’s combined total disability rating for his service-connected disabilities is: • 10% from 05/25/1988 • 20% from 03/22/2005 • 40% from 10/31/2011 • 100% from 05/16/2013 • 30% from 07/01/2014 Throughout the appeal period, the Veteran did not have a service-connected disability rated at least 60 percent or a combination of service-connected disabilities rated at least 70 percent with one of those disabilities rated at 40 percent or higher. The Board notes that the Veteran was assigned a 100 percent disability rating from May 16, 2013, through June 30, 2014, following a total right knee replacement. Because the Veteran received a 100 percent disability rating during that period, he was not eligible for TDIU. Therefore, that period is not on appeal. See A.B. vs. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, entitlement to TDIU under 38 C.F.R. § 4.16(a) is not warranted. Extraschedular TDIU Referral to the Director The Board directed the RO to refer the Veteran’s claim for TDIU to the Director within its February 2021 remand order. A February 2021 VA Memorandum associated with the Veteran’s claims file indicates the RO complied with the Board’s directive. The Director provided an advisory opinion in March 2021 in which she 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.” Merits of the claim for TDIU Although the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU under section 4.16(b), the Board is not bound by the Director’s decision. Wages, 27 Vet. App. at 236. The Director’s decision itself, whether favorable or unfavorable to the Veteran, is not evidence; rather, it is a de facto decision by the agency of original jurisdiction, and the Board must conduct a de novo review of the decision. Id. at 238‒39; Kuppamala v. McDonald, 27 Vet. App. 447, 456‒57 (2015). Likewise, the Board’s decision to refer a TDIU claim for extraschedular consideration does not bind the Board when it later decides whether to award an extraschedular TDIU. Ray, 31 Vet. App. at 66. The Board is nonetheless mindful that an extraschedular rating is only assigned in “exceptional” cases “where the schedular evaluation is inadequate[.]” 38 C.F.R. § 3.321(b)(1). Bearing in mind the benefit-of-the-doubt standard, 38 U.S.C. § 5107(b), the Board now turns to whether to award TDIU based on the Veteran’s service-connected disabilities. From October 31, 20122, to May 16, 2013 Economic component The Veteran submitted VA Form 21-8940, Application for TDIU, in 1998 and 2007. The Veteran reported last working full-time in May 1998, which was also the time he became too disabled to work. From 1969 to 1998, he worked as a U.S. postal clerk. According to his 1998 VA Form 21-8940, the most he made was $43,000.00 in 1997, the year preceding his retirement in 1998 from the U.S. Postal Service. But according to his 2007 VA Form 21-8940, the most he made was $36,000.00. His highest gross earnings per month was $1,500.00. Since retiring in 1998 due to his disabilities, the Veteran has relied on disability retirement benefits. He has not worked since his retirement. The poverty threshold for one person, under the age of 65 in 2011 was $11,702.00. United States Census Bureau, Poverty Thresholds, 2011, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed Apr. 10, 2021). The poverty threshold for one person under the age of 65 in 2013 was $12,119.00 and for one person over the age of 65 in 2013 was $11,173.00. United States Census Bureau, Poverty Thresholds, 2013, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed Apr. 10, 2021). The poverty thresholds increased yearly between 2011 and 2013, but no higher than the 2013 poverty threshold. Based on the evidence of record, the Board finds the Veteran’s earned annual income due to employment did not exceed the poverty threshold for one person under the age of 65 prior to 2013. Thus, he meets the economic component of TDIU from October 31, 2011, to May 16, 2013. Non-economic component The Board believes background describing the severity of the Veteran’s right knee disabilities is necessary to provide proper context for its decision during the appeal period of October 31, 2011, to May 16, 2013. First, the Board finds the Veteran’s retirement was caused by his service-connected right knee disabilities. Prior to his total knee replacement in May 2013, the Veteran suffered symptoms including dislocation, instability, pain, and inflammation. He reported he was unable to stand for periods of time greater than one hour. In his June 1998 VA Form 21-4138, Statement in Support of Claim, the Veteran reported that in the three years preceding his retirement in 1997, he was placed on “light duty” during his employment. In his June 1998 and March 2007 VA Forms 21-8940, he stated he had difficulty standing, bending, and lifting due to his knee and associated medication, which interfered with his work and ultimately caused him to retire. Of significant note is a May 1998 U.S. Postal Service correspondence (received by VA in May 2005). A customer service supervisor reported that the Veteran was employed as a “DBCS Operator (Machine).” His duties consisted of standing and walking for 8 hours a day, twisting, bending, and reaching above his head, and lifting trays of mail in a fast pace. The supervisor reported that the Veteran was unable to do his job because of his medical problems. The supervisor reported that the Veteran was unable to stand and walk up and down the machine or load and sweep the machine. The supervisor reported the Veteran’s medications caused him to fall asleep while sitting and working mail. The supervisor deemed this a safety hazard. The Veteran was unable to maintain a standing or sitting position for a very long time. The supervisor reported the Veteran was not able to perform his duties due to the worsening of his disabilities. The Veteran has had multiple VA examinations addressing the severity of his right knee disabilities prior to May 16, 2013. A February 2008 VA examiner noted the Veteran’s severe arthritis in his right knee limited his ability to stand for long periods of time, to lift, and to walk. Nevertheless, the examiner opined the Veteran could participate in work where he could sit for a portion of the day. An October 2009 VA examiner opined that the Veteran would not be employable with a position that required weight bearing. Relying on these examinations, with other evidence of record at the time, the Board issued a December 2010 decision denying entitlement to TDIU. To be clear, the Board is not disturbing the findings of the December 2010 decision within this decision. Following the December 2010 Board decision, in October 2011, the Veteran filed his claim for an increased rating for his right knee instability and right knee traumatic arthritis. He received a VA examination in February 2012. The examiner stated that the Veteran’s medical history as to his right knee demonstrated progressive worsening. The Veteran reported intermittent swelling, flare-ups associated with prolonged standing, walking, and bending. The examiner opined that the Veteran’s functional loss associated with his right knee included less movement than normal, weakened movement, pain on movement, and swelling. The Veteran reported use of a cane on a regular basis and use of a knee brace occasionally. The examiner opined the Veteran’s right knee disabilities impacted his ability to work but did not explain to what extent. Following the VA examination, the Veteran’s VA medical records indicate worsening of his right knee disabilities, to include continued loss of range of motion. Compare February 2012 VA Examination (flexion of 0 to 110 degrees) with April 2012 VA Orthopedic Surgery Note (range of motion of 0 to 90 degrees). In May 2013, the Veteran’s right knee disabilities worsened so much that total right knee replacement was the best option. He had a total right knee replacement on May 16, 2013. The Board recognizes that the Veteran completed two years of college education, which he confirmed during two separate Board hearings. April 2010 Board Hearing Transcript, at 10; June 2016 Board Hearing Transcript, at 17. In 1971, the Veteran submitted VA Form 21E-1999-1, indicating he obtained an associate degree in general education following two years of college. He did not report any further education, training, or experience beyond that just discussed. His past experience and skills, however, is not dispositive. Based on the evidence of record and resolving reasonable doubt in favor of the Veteran, the Board finds the non-economic component weighs in favor of entitlement to TDIU from October 31, 2011, to May 16, 2013. Since the Board’s December 2010 decision, the Veteran’s right knee progressively worsened to the point of total knee replacement. As the Veteran’s right knee already limited his ability to stand, bend, and walk, the Board reasonably concludes his functionality was further limited during this appeal period. Although the February 2008 VA examiner opined the Veteran could do work that required sitting, the February 2012 VA examiner made no such finding. Instead, the February 2012 VA examiner simply opined that the Veteran’s ability to work was impacted. Because the Board is required to provide the Veteran the benefit of the doubt, when viewing the evidence during the relevant appeal period as a whole, the Board finds the Veteran’s ability to work was more severely impacted during this appeal period than it was previously. Although the Veteran has two years of college education and substantial prior work experience, his service-connected right knee disabilities severely impacted his ability to stand, walk, bend, and sit for prolonged periods of time. He would require a position that provided constant changes of physical position, which is hard to envision. The Board finds these limitations in combination significantly affected his ability to secure a position that would offer reasonable accommodations based on the severity of his right knee disabilities during this appeal period. Notably, this appeal period was not long before he had a total right knee replacement, which suggests his right knee symptoms were much worse that than during the VA examinations in 2008 or 2009. In addition, he was already 40 percent disabled (combined rating) as of October 31, 2011, for his right knee disabilities, which is a factor the Board has considered. Accordingly, affording the Veteran the benefit of the doubt, the Board finds a rating of TDIU is warranted on an extraschedular basis from October 31, 2011, to May 16, 2013. The Board has considered all relevant evidence since the Board’s December 2010 decision through October 31, 2011, to determine if it was factually ascertainable that the Veteran was entitled to TDIU at an earlier period. 38 C.F.R. § 3.400(o)(2). But there is a lack of medical and lay evidence that reasonably indicates the Veteran was unable to secure and maintain substantial gainful occupation during that period. At most, the Board can conclude he experienced symptoms similar to those documented in his October 2009 VA examination, which did not warrant TDIU as analyzed by the Board’s December 2010 decision. From July 1, 2014 Economic component As part of the Board’s February 2021 remand, the RO sent the Veteran a request to provide an updated VA Form 21-8940, Application for TDIU. The Veteran did not submit an updated form. Absent evidence to the contrary, the Board finds the Veteran’s employment status did not change as of July 1, 2014. He still has not worked since his retirement. The poverty threshold for one person over the age of 65 in 2014 was $11,345.00 and in 2020 was $13,456.00, the most recently revised threshold. See United States Census Bureau, Poverty Thresholds, 2014 and 2020, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed Apr. 10, 2021). The poverty thresholds increased yearly between 2014 and 2020, but no higher than the 2020 poverty threshold. Based on the evidence of record, the Board finds the Veteran’s earned annual income due to employment did not exceed the poverty threshold for one person over the age of 65 from July 1, 2014, to the present. Thus, he meets the economic component of TDIU from July 1, 2014. Non-economic component Following his total right knee replacement in May 2013, the Veteran was awarded a temporary 100 percent disability rating that ended July 1, 2014. See 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2014) (providing for a 100 percent disability rating for one year following total knee replacement). As of July 1, 2014, the Veteran was service connected for right knee traumatic arthritis postoperative medial meniscectomy s/p total knee arthroplasty, rated 30 percent disabling. See id. (minimum 30 percent disability rating). Logically, the Veteran’s prior symptoms associated with his right knee disabilities were resolved by his total right knee replacement. His VA medical records indicate his right knee “significantly improved following knee replacement and [physical therapy].” September 2014 VA Primary Care Note. Since his total knee replacement, he still experienced occasional pain, but his range of motion significantly increased with no significant functional loss. November 2014 VA Orthopedic Surgery Note (flexion 0 to 120 degrees); January 2015 VA Orthopedic Surgery Attending Note (good range of motion); February 2018 VA Orthopedic Surgery Attending Note (pain in knee but doing well); September 2018 VA Primary Care Nursing Note (pain in knee); February 2019 VA Orthopedic Surgery Attending Note (good range of motion). In January 2020, the RO provided the Veteran with a VA-contracted examination addressing the severity of his service-connected right knee disability. The Veteran reported he experienced daily pain, stiffness, and swelling. He rated his pain as 8 out of 10 on a 10-point scale with 10 being the worst pain. He was taking Acetaminophen 650 mg and undergoing physical therapy. He reported flare-ups three to four times a week, which were moderate in intensity and lasted one to two hours. The flare-ups occurred following physical exertion. He reported difficulty, running, bending, kneeling, squatting, lifting, climbing, walking, sitting, and standing for prolonged periods of time. It is important to note that the Veteran also underwent total left knee replacement in 2014, and the examiner did not separate whether the Veteran’s reported functional impairment was only related to his service-connected right knee disability or was in combination with both knees. Providing the Veteran the benefit of the doubt, the Board will conclude the examiner addressed only his service-connected right knee disability. The examiner-documented the Veteran’s right knee flexion was 0 to 100 degrees (normal being 0 to 140 degrees) and his extension was 100 to 0 degrees (normal being 140 degrees to 0 degrees). The examiner documented pain on flexion and extension. Following repetitive use over time and during flare-ups, the examiner opined the Veteran would suffer an additional loss of 10 degrees in flexion and extension. The examiner opined that the Veteran’s right knee disability did impact his functional ability to work, but he was not unable to work. The examiner opined that the Veteran could perform sedentary work involving sitting most of the time and walking or standing for brief periods. Jobs that required sitting for most of the time but that required pushing and/or pulling of arm or leg controls would not be appropriate. In addition, the examiner opined the Veteran could not do jobs that required walking, standing, or working at a production-rate pace that involved constant pushing and/or pulling of materials, or exerting greater than 20 pounds of force occasionally and/or frequently. Furthermore, he could not do tasks requiring climbing stairs and ramps, stooping, crouching, kneeling, and crawling. Again, it is important to note that the examiner did not explain whether his opinion was based only on the Veteran’s service-connected right knee disability or based on both his right (service connected) and left (nonservice connected) disabilities combined. Providing the Veteran the benefit of the doubt, the Board will conclude the examiner addressed only his service-connected right knee disability. Absent evidence to the contrary, the Board finds the January 2020 VA-contracted examiner was competent to exam and diagnose the Veteran and to provide a medical opinion addressing the severity of his service-connected right knee disability. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board finds the examiner’s overall examination, medical findings, and opinions credible and probative. The examiner conducted a thorough in-person examination, relied on accurate facts, considered the Veteran’s relevant medical records, medical history, and lay statements, and provided a well-reasoned medical judgment that connected the facts to her conclusions. The Board points out that the examiner implicitly defined “sedentary” as work characterized by sitting most of the time with brief periods of walking or standing. The Board finds this definition is consistent with the generally understood meaning of the term. See Sedentary, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/sedentary, Definition 2.a. and 2.b. (last visited Apr. 11, 2021) (defining “sedentary” as “doing or requiring much sitting” and “not physically active”). The Veteran had extensive federal experience as a U.S. postal clerk. His duties included carrying bags of mail, sorting mail, and using machines in the processing of mail. His past employment experiences reasonably lead the Board to conclude he has a good understanding of office environments, organization, time-management, and skills associated with generalized clerical work. He has two years of college education and an associate degree in general education. There is no evidence of record that the Veteran has lost the skills or knowledge he acquired over his nearly 30 years of federal service as a postal clerk. At this time, the Veteran’s service-connected right knee disability does limit his functional ability to work, but he is not unable to work. The most significant evidence of record is the January 2020 VA-contracted examiner’s opinion addressing the functional impact of the Veteran’s right knee disability. While the examiner reasoned that the Veteran’s right knee disability prevents most physical work-related duties, the Veteran’s disability does not prevent him from working in a position that permits sitting most of the time and that involves walking or standing for brief periods. This is in contrast to his disability picture prior to May 16, 2013, which required him to, among other activities, avoid prolonged sitting. The Board finds the Veteran is well-qualified—occupationally and physically—for clerical work. The Board can reasonably envision clerical positions that require the Veteran to sit at a desk, complete organizational and clerical tasks, be allowed to stand or walk when necessary, and otherwise use his acquired skills and knowledge. Moreover, any physical limitations associated with the Veteran’s right knee disability that would reasonably require accomodation would be provided for by the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111(9)(B). The ADA enables an individual with a disability to have an equal opportunity not only to get a job, but successfully perform their job tasks to the same extent as people without disabilities. The ADA requires reasonable accommodations as they relate to three aspects of employment: (1) ensuring equal opportunity in the application process; (2) enabling a qualified individual with a disability to perform the essential functions of a job; and (3) making it possible for an employee with a disability to enjoy equal benefits and privileges of employment. An example would be providing a person with sit/stand limitations a sit/stand desk to overcome such limitations. That is, as long as a person was allowed to alternate between such positions, which would be the case in many less physically demanding jobs. Given the wide spectrum of jobs and accommodations, this is not unreasonable. TDIU awards serve an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran’s disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. This evidence leads the Board to conclude that the Veteran has the functional ability, necessary skills, education, and general aptitude to secure and maintain substantially gainful employment from July 1, 2014. Although he is currently retired, the question is whether he would be capable of earning more than the poverty threshold if he were employed in light of his service-connected disabilities. The answer to that question is yes. Accordingly, from July 1, 2014, entitlement to TDIU is not warranted on an extraschedular basis. Conclusion From October 31, 2011, to May 16, 2013, the Veteran’s service-connected right knee disabilities prevented him from securing and maintaining substantially gainful employment. Therefore, TDIU on an extraschedular basis is warranted for that appeal period. From July 1, 2014, following his recovery from a total right knee replacement, the Veteran’s service-connected right knee disability did not prevent him from securing or maintaining substantially gainful employment. Therefore, TDIU on an extraschedular basis is not warranted for that appeal period. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.