Citation Nr: 21026234 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-01 743 DATE: April 30, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities, without consideration of his age or non-service-connected disabilities, did not prevent the Veteran from obtaining and maintaining substantially gainful employment at any time during the appeal. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1984 to November 1985. The Veteran attended a hearing before the undersigned Veterans Law Judge in August 2017. A transcript of the hearing is of record. This matter was previously remanded by the Board of Veterans’ Appeals (Board) in June 2018 and June 2020. Entitlement to a TDIU The Board took jurisdiction of the issue of entitlement to a TDIU in its June 2020 decision, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), at which time the issue of an increased rating for a left knee disability was before the Board. That issue stemmed from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). While the increased rating claim was decided, the TDIU issue was remanded for additional development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Veteran meets the schedular criteria for entitlement to a TDIU for the periods on appeal from April 26, 2015 to July 21, 2016, excluding a temporary 100 percent rating from August 26, 2015 to November 1, 2015, and from December 1, 2017. The Veteran’s service-connected disabilities include unspecified depressive disorder, rated as 30 percent from April 28, 2011; total left knee replacement rated as 10 percent from April 1, 2004 and 30 percent from December 1, 2017 (excluding temporary 100 percent rating periods); right knee disability rated as 10 percent from April 1, 2004; tinnitus rated as 10 percent from April 14, 2009; left ankle disability rated as 10 percent from December 14, 2013; left knee extension rated as 10 percent from April 26, 2015 to July 21, 2016; left knee instability rated as 20 percent from April 25, 2015 to August 26, 2015, and from November 1, 2015 to July 21, 2016, and 10 percent from July 21, 2016 to October 19, 2016; left and right hip disabilities both rated as 10 percent from July 31, 2017; back disability rated as 20 percent from July 31, 2017 and 10 percent from September 11, 2017; left lower extremity radiculopathy of the femoral nerve rated as 10 percent from September 11, 2017; and left and right lower extremity radiculopathy of the sciatic nerve both rated as 10 percent from July 31, 2017 to September 11, 2017. The Board notes that the Veteran’s orthopedic disabilities (left and right knee disabilities, left ankle disability, right and left hip disabilities, and back disability), may be treated as a single disability for the purposes of TDIU with an evaluation of at least 40 percent. Additionally, the Veteran’s combined disability rating is 70 percent from April 26, 2015 to July 21, 2016, excluding the temporary 100 percent rating from August 26, 2015 to November 1, 2015, and 80 percent from December 1, 2017. Accordingly, the Veteran qualifies for a schedular TDIU from April 26, 2015 to July 21, 2016, excluding a temporary 100 percent rating from August 26, 2015 to November 1, 2015, and from December 1, 2017. In a July 2020 letter, the RO asked the Veteran to complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, as well as a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to substantiate the Veteran’s claim for TDIU. However, the Veteran did not complete VA Form 21-8940 as requested in July 2020, as noted in the September 2020 Supplemental Statement of the Case (SSOC). While failure to complete the form is not fatal to a TDIU claim in and of itself, the Veteran’s failure to do so deprives the Board of information as to the Veteran’s employment history, educational history and training, and income information necessary to address a claim for TDIU. “The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In a February 2014 examination for the Veteran’s left ankle disability, the examiner indicated that the Veteran’s service-connected left ankle disability did not impact his ability to work. The Veteran had an examination for his knee disabilities in November 2014. The examiner noted that the Veteran’s knee disabilities did not impact his ability to work. The Veteran had an examination for his left knee disability in the form of a disability benefits questionnaire (DBQ) in April 2015. The examiner noted that the Veteran’s left knee disability impacts his ability to function. Specifically, the examiner stated that the Veteran is unable to work during a flare-up of his left knee disability. The Veteran had an examination for his left knee disability in July 2016. The examiner indicated that the Veteran’s left knee disability did not impact his ability to work. In a February 2017 examination for the Veteran’s knees, the examiner noted that the Veteran’s knee disabilities affected his ability to work. Specifically, the examiner noted that the Veteran would be unable to perform significant standing, walking, stairs, or squatting. At the Veteran’s August 2017 Board hearing, he testified that he has worked for the Federal government since 1995. The Veteran further testified that he had a “sit down job”, although he indicated that his previous job required “a lot of walking in the file areas”. Additionally, the Veteran testified that he has to get up quite often at work and that he has difficulty walking and using stairs. In an August 2017 DBQ for the Veteran’s hip disabilities, the examiner noted that the Veteran’s hip disabilities impacted his ability to work. The examiner noted that the Veteran has pain with repetitive activity. In an August 2017 DBQ for the Veteran’s back disability, the examiner noted that the Veteran’s back condition affected his ability to work. Notably, the examiner indicated that the Veteran has pain with prolonged standing, and any activity requiring bending, stooping, lifting or carrying. In a September 2017 examination for the Veteran’s back condition, the examiner noted that the Veteran’s back disability impacted his ability to work. The examiner stated that the Veteran’s back disability interferes with his ability to lift, bend, and twist. Additionally, a September 2017 examination for the Veteran’s hip disabilities noted a functional impact. Specifically, the examiner stated that the Veteran’s hip disabilities interfere with walking long distances and standing for long periods of time. In VA treatment records from July 2018, the Veteran reported that he was unemployed and receiving unemployment benefits. The Veteran reported that he previously worked as a claim’s assistant at the Veterans Benefits Administration (VBA) until he was “forced to resign” due to issues with attendance. The Veteran claimed to have only taken approved FMLA and leave without pay (LWOP) due to a knee surgery, but stated his employer informed him they did not know where he was for 9 months. The Veteran reported that he hoped to regain federal employment due to having accrued 23 years of federal service, and that he has applied to a number of jobs through USA Jobs. Additionally, the Veteran stated that he was interviewed by the Army Corps of Engineers, however, he did not pass his physical. Additionally, the Veteran noted a scheduled a meeting with VR&E where he hoped to discuss finishing his bachelor’s degree and potentially participating in work study. The Veteran had an examination for his acquired psychiatric disorder in September 2018. The Veteran reported that after discharge from service he worked as a temp worker. Additionally, the Veteran reported previously working as a painter on a shipyard and security in a warehouse. The Veteran further reported working for the National Archives for 12 years, working as a hospital attendant, and then working for the VBA for 11 years. The Veteran exhibited symptoms including depressed mood, chronic sleep impairment, and disturbances of motivation and mood. The Veteran denied that he was having any difficulties with coworkers or performing duties on the job prior to his knee replacement. The Veteran had another examination for his left knee disability in September 2018. The examiner indicated that the Veteran’s knee disabilities impacted his ability to work. Specifically, the examiner noted that the Veteran ability to stand and walk were limited. In VA treatment records from February 2019, the Veteran reported that he will be starting a new job as a custodian. The Veteran reported feeling apprehensive about his new job, however, he reported that he is glad to be working for the Federal government in any capacity. The Veteran indicated that he is overqualified for his new job, indicating that he has an associate degree and used to teach in a junior college. The Veteran stated that he may try to become a tour guide or a park ranger because he is a “history buff”. Given the totality of the record, the Board finds that the Veteran’s service-connected disabilities did not render him unemployable at any point during the appeal. While the record supports that symptoms of the Veteran’s service-connected disabilities, particularly his left knee disability, result in some occupational impairment, it does not show that he would be precluded from participation in regular substantially gainful employment. The medical evidence of record notes that the Veteran’s service-connected disabilities impact his ability to work by limiting his ability to walk and stand for extended periods. However, the medical evidence of record does not preclude the Veteran from working in an office setting. Furthermore, the Veteran specifically denied that he was having any difficulties with coworkers or performing duties on the job prior to his knee replacement. Moreover, the medical evidence of record indicates that his acquired psychiatric disorder symptoms are mild and have a limited impact on his ability to function in a worklike setting. The Veteran has also reported that he has an associate degree and that he has an employment background including work at the National Archives for 12 years and as a claim’s assistant at VBA for 11 years. Based on the Veteran’s education and employment history, he likely has sufficient transferable skills to secure and maintain employment. As a result, it is not shown that the Veteran’s service-connected disabilities preclude his participation in regular substantially gainful employment. Additionally, the Board has considered whether referral for extraschedular consideration is warranted. Since the Veteran’s combined rating did not meet the percentage standards of 38 C.F.R. § 4.16(a) for portions of the appeal period, the claim for a TDIU may be considered only under 38 C.F.R. § 4.16(b) on an extraschedular basis for those periods on appeal. An extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a); in such cases, the rating authority should refer the matter to the Director of the Compensation Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16(b). The Board concludes that referral for an extraschedular TDIU is not warranted in this case. Consideration has been given to the fact that the Veteran has a mobility issues due to his service-connected disabilities, in particular as a result of his total left knee replacement; however, the Veteran has skills, as shown by his prior work experience, that the Board finds would not preclude his ability to secure and follow gainful employment. The Veteran has an associate degree and has previous work experience in an office setting including 12 years working for the National Archives and 11 years working at VBA. The Veteran likely has transferrable skills from his previous employment and education background that would allow him to be able to secure and maintain substantially gainful employment. Accordingly, the Board finds referral of the Veteran’s TDIU claim for extraschedular consideration is not warranted. In short, the Board finds that the Veteran’s service-connected disabilities do not render him unemployable. Accordingly, entitlement to a TDIU is not warranted and the claim is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.