Citation Nr: 21028143 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 11-31 744A DATE: May 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities, either individually or through their combined effect thereof, do not preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW Throughout the period on appeal, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 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 September 1976 to September 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by a Department of Veterans Affairs Regional Office (RO). In July 2016, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. This matter was previously remanded in April 2017, January 2019 and February 2020. In December 2020, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain private treatment records identified by the Veteran. The Board notes that private medical records from the University of Florida were received in April 2021, and have been associated with the claims file. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). TDIU The Veteran asserts that his service-connected disabilities preclude him from substantially gainful employment. See November 2009 NOD. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). Marginal employment is found whenever the veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census as the poverty threshold for one person. 38 C.F.R. § 4.16. However, 38 C.F.R. § 4.16 further provides an exception to the income limitation regarding employment in a protected environment, such as family business or sheltered workplace, on a facts-found basis. Id. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). During the pendency of the appeal, the Veteran has been service connected for the following disabilities: right knee disability rated 10 percent disabling effective November 2008; left knee disability rated 10 percent disabling effective December 2010; and pseudofolliculitis barbae rated noncompensable. Accordingly, the Veteran has not met the schedular rating criteria. With regard to an extraschedular rating, if a veteran fails to meet the threshold minimum percentage standards in 38 C.F.R. § 4.16(a), such as the case here, rating boards are to refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, despite the Veteran not meeting the percentage requirements for TDIU, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age which would have justified a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Board has jurisdiction to review the entirety of the Director's decision denying or assigning an extraschedular rating and the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). Although the Board is required to obtain the Compensation Service Director's decision before awarding extraschedular TDIU benefits in the first instance, see Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)). The evidence of record includes a June 2009 VA examination noting the Veteran worked at a lumber mill, but that he was recently let go due to an inability to stand or walk for prolonged periods of time. Range of motion (ROM) testing for the right knee revealed extension and flexion between 0 and 120 degrees with no change in ROM following repetitive-use. No instability was found. Tenderness to palpation of the medial joint line was noted. The Veteran denied any flare-ups. The examiner also noted no painful motion was objectively found, including during repetitive use testing which did not cause pain, fatigue, weakness or incoordination. The examiner determined the Veteran did not have problems with activities of daily living. In November 2010, a VA medical record noted knee pain aggravated by walking. ROM was 0 to 130 degrees. A positive valgus stress test was noted as was negative varus stress, anterior drawer, and posterior drawer tests. No deformity was found. No swelling was found. See VA Medical Records Received November 2019. The Veteran underwent another VA knee examination in April 2011. The examiner noted diagnoses for bilateral degenerative joint disease (DJD) and left knee strain. An examination of the right knee found no deformity. The Veteran reported that his right knee gave way, however, no instability was found. Other symptoms included pain, stiffness and weakness. No episodes of dislocation or subluxation were noted. Additionally, the examiner noted no locking episodes or effusion. An examination of the left knee revealed no deformity, giving way, instability, incoordination, episodes of dislocation or subluxation. The Veteran did report pain, stiffness and weakness. The Veteran denied fare-ups affecting either knee. The Veteran was able to stand for 15-30 minutes. He was unable to walk more than a few yards. Right knee ROM testing revealed flexion to 125 degrees and extension to 0 degrees, with pain reported throughout. Objective evidence of pain following repetitive motion was also found, but not additional limitation of motion. Left knee ROM testing revealed flexion to 120 degrees and extension to 0 degrees with pain reported throughout. The bilateral knee was not found manifested by a meniscal condition. The bilateral knee disability was found to have significant effects on the Veteran's usual occupation including pain, decreased mobility and problems with lifting and carrying. A July 2011 VA medical record noted moderate right knee pain the past 30 years with worsening symptoms over time. Most of the pain was noted along the medial and lateral aspects of the knee. Knee pain as also noted posteriorly. The Veteran reported swelling, giving way and stiffness. He denied symptoms of locking. Upon examination, the physician noted moderate tenderness of the medial and lateral joint line. No effusion, abnormal varus/valgus ligamentous laxity was found. See VA Medical Records Received November 2019. An October 2011 private treatment record noted a VA MRI study revealing a mass in the right superior popliteal fossa. A significant history of bilateral knee DJD and bilateral knee extensor mechanism disruption status post repairs was noted. The Veteran complained of some posterior right knee pain which was found mechanical in nature. ROM testing revealed extension and flexion between 0 and 120 degrees. A Tinel's test was negative. Motor function was found normal. See Private Treatment Records Received April 2021. A January 2012 Social Security Administration (SSA) Decision found the Veteran disabled since October 2009 due to his bilateral knee condition. The decision also found that due to the bilateral knee disability, the Veteran was unable to perform any past relevant work. However, the Veteran was found to have the functional capacity to perform the full range of sedentary work. SSA records further show the Veteran attained 14 years of education and had worked as a boat maker, core layer and laborer. In August 2013, the Veteran reported that his left knee gave way. Symptoms reported for the right knee included pain with a locking sensation. See VA Medical Records Received November 2019. An August 2013 VA skin examination noted a diagnosis for pseudofolliculitis barbae (PFB). The Veteran denied any current treatment, and the examiner noted no treatment with oral or topical medications in the past 12 months. The skin condition was not found to impact his ability to work. In June 2015, a VA medical record noted marked laxity of the bilateral knee with right less than the left. See VA Medical Records Received November 2019. At a July 2016 Board hearing, the Veteran testified that he had been unemployed for about eight years and that he stopped working due to his bilateral knee condition because he could not perform his duties. The Veteran also testified that he had worked in law enforcement and at a lumber mill. During a December 2017 VA examination, the examiner noted a diagnosis for right knee patellofemoral pain syndrome and myositis ossificans, left knee patellar tendonitis, and bilateral knee degenerative arthritis and myositis ossificans. The Veteran reported pain in the back of the lateral side of his knee where it felt like something was pulling. He also reported pain in the front of his knee below the patella. The Veteran reported flare-ups and functional loss causing him to stop doing Tae Kwon Do and requiring him to stop frequently when driving. ROM testing revealed extension and flexion 0 to 90 degrees for the right knee, and 0 to 65 degrees for the left knee. Pain was noted during both flexion and extension. The Veteran was unable to bend, kneel or squat. Functional loss was not found to be caused by pain, fatigue, weakness, lack of endurance or incoordination. Muscle strength testing was normal for the right knee, and active movement against some resistance was found for the left knee. The bilateral knee was not found manifested by instability or a meniscal condition. No other pertinent physical findings were found except for a scar which was not painful or unstable or covered an area greater than 39 square inches. The bilateral knee disability was found to impact the Veteran's ability to work due to having to avoid bending, kneeling, squatting, climbing stairs and prolonged walking. The record also contains a July 2019 VA knee examination. The Veteran reported worsening symptoms over the years resulting in increased pain and reduced range of motion. The Veteran also reported flare-ups and functional loss, however, the examiner only noted such symptoms as it related to the left knee. Flare-ups were reportedly caused by bending, walking or standing for long periods of time, were moderate to severe in severity, and lasted from a few hours to a day. Right knee ROM testing revealed extension and flexion between 0 and 110 degrees. The Veteran was able to perform repetitive-use testing with no further loss of motion. Pain was noted upon flexion that caused functional loss further limiting ROM to 105 degrees flexion. Repetitive use over time and flare-ups were also found to further reduce flexion to 105 degrees. Left knee ROM testing revealed extension and flexion between 0 and 90 degrees. Repetitive use over time and flare-ups were found to reduce flexion to 85 degrees. Muscle strength and joint stability testing were normal bilaterally. The bilateral knees were found to impact the Veteran's ability to work due to pain with prolonged standing and/or repetitive squatting. In an October 2020 advisory opinion, the Director, Compensation Service, noted the Veteran was in receipt of Social Security based upon a bilateral knee disability. The SSA was noted to have found additional disabilities of hypertension and glaucoma. However, after a review of the evidence, the Director determined that there was insufficient evidence to support a finding that the Veteran was unemployable due to his bilateral knee and skin condition. After a review of the evidence of record, the Board finds that entitlement to TDIU on an extraschedular basis is not warranted. While the Board does not doubt that the Veteran's service-connected disabilities have had a significant effect on his employability, the weight of the evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in all forms of substantially gainful employment based on his occupational background and level of education. The Veteran's previous employment consisted of working in law enforcement, as a boat maker, core layer and laborer, including in a lumber mill. The evidence also shows the Veteran has attained 14 years of education. Accordingly, the Board notes that while the evidence shows the bilateral knee disability would preclude occupations requiring the Veteran to stand for prolonged periods of time and lift heavy objects, the evidence does not indicate he is unable to work in occupations that do not require those same physical requirements. While the Board recognizes the SSA determination that the Veteran was "disabled" due to his bilateral knee disability, that determination was based solely on a finding that the Veteran was unable to perform demanding physical labor. Additionally, a review of the SSA records do not show that the Veteran's previous employment in law enforcement was considered. Instead, a review of the Findings of Fact shows that only employment as a boat maker, core layer and laborer were considered. Additionally, the Board finds that the SSA determination supports the finding that the Veteran is not precluded from other forms of employment that does not require demanding physical labor. The Board further observes that the Veteran's VA knee examination reports reflect that his service-connected disabilities do not result in functional impairment precluding his ability to work. Instead, they support the finding that he could work in functions that do not require prolonged standing or repetitive squatting, bending, kneeling, climbing stairs or heavy lifting. The service-connected skin condition has not been shown to impact his ability to work. Accordingly, the Board finds that the symptomatology associated with the service-connected disabilities shows the Veteran has been appropriately compensated via the combined 20 percent rating. (Continued on the next page) Thus, the Board finds that the probative evidence of record reflects that while his service-connected disabilities might affect his ability to perform certain functions, they do not prevent his ability to work, and, therefore, have not rendered him unable to secure and follow a substantially gainful occupation. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.