Citation Nr: 21028427 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-18 865 DATE: May 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis is denied. FINDING OF FACT The Veteran did not meet the schedular criteria for a TDIU, and the preponderance of the evidence is against a finding that the Veteran was unable to obtain or retain substantially gainful employment due to service-connected disabilities. 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; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served with the United States Army from March 1972 to July 1975. By way of background, the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC) the Board's November 2017 decision. In a February 2019 decision, CAVC granted a Joint Motion for Partial Remand (JMPR) which found the Board erred by failing to address the issue of entitlement to TDIU in the November 2017 decision. See February 2019 CAVC Decision. Following the February 2019 CAVC decision, the Veteran's claim was remanded multiple times for additional development. First, in the July 2019 decision, the Board found that the Veteran's claim for a TDIU was inextricably intertwined with his claim for an increased rating for his knee conditions. In the November 2020 decision, the Board found that SSA records needed to be obtained to fully adjudicate on the Veteran's TDIU issue. Most recently, in the February 2021 decision, the Board referred this matter to the VA's Director of Compensation Service for extraschedular consideration for a TDIU evaluation. Entitlement to a TDIU on an extraschedular basis. The Veteran contends that he is entitled to TDIU because his service-connected disabilities have rendered him unemployable. Nevertheless, after a thorough review of the evidence of record, the Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to a TDIU, including on an extraschedular basis. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). The Board finds the Veteran did not meet the schedular rating criteria required for TDIU. The Veteran is service connected for right knee residuals at a 20 percent rating, right knee instability at a 20 percent rating, right knee lateral meniscus tear at a 10 percent rating, left knee degenerative joint disease at a 10 percent rating, degenerative arthritis of the right knee at a 10 percent rating and a surgical scar associated with right knee status post medial-lateral cartilage residuals at a 0 percent rating. The Veteran's combined evaluation was 10 percent from July 12, 1975, 40 percent from December 30, 2009 and 50 percent from July 1, 2019. See February 2021 Rating Decision Codesheet. Therefore, the Board finds that the Veteran did not meet the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a). Thus, the claim of entitlement to TDIU on a schedular basis must be denied. Although the Veteran has not met the schedular percentage requirement, he may still be considered for a TDIU rating under 38 C.F.R. § 4.16(b) on an extraschedular basis, if unemployable by reason of service-connected disabilities that do not meet the percentage standards set forth in § 4.16(a). Rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). His 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). As will be discussed further below, this claim has already been referred to the Director of Compensation Service (Director) for extraschedular consideration. Although VA is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review 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)). Therefore, the Board will review the Director's determination de novo. Turning to the merits of the claim, the Veteran contended that he was unable to work labor jobs which required long periods of standing because his back and knees give out. He further noted that it was hard to find work that would allow him to sit when needed. See May 2012 Statement in Support of Claim. In August 2012, the Veteran also indicated that his service-connected disabilities prevented him from walking, standing, or lifting for prolonged periods of time. See August 2012 Application for Increased Compensation Based on Unemployability. He stated that he last worked in May 2011, he was most recently employed working at Aegis Communication in customer service, and he completed 3 years of college. Throughout the appeal period, the Veteran attended multiple VA examinations for his knee conditions and reported various functional impairments associated with these disabilities. In pertinent part, in a January 2010 examination, the Veteran reported that he had difficulty using his legs to lift and he had missed 5 days of work in the last 6 months because of his knee problems. The examiner noted, however, that the Veteran's activities of daily living were unaffected. In a July 2013 examination, the Veteran reported that his knee condition impacted his ability to work. Specifically, he was unable to engage in manual labor, prolonged standing or walking. However, the examiner reported that he was able to engage in sedentary sitting employment. See July 2013 VA examination. In a November 2016 examination, it was documented that the Veteran had not worked in 5 years. The examiner documented that the Veteran's current bilateral condition limited his ability to perform repetitive climbing or squatting as well as prolonged walking. See November 2016 VA examination. In a May 2017 examination, the Veteran reported that he was limited in standing and walking by bilateral knee pain. He noted he last worked at AT&T doing sedentary work and was unable to continue that job because of pain with prolonged sitting. See May 2017 VA examination. Pursuant to the Board's July 2019 directives, in December 2019, a VA examiner provided a medical opinion regarding whether the Veteran's right knee disability had an impact on his ability to work. The examiner indicated that the Veteran's knees may impair his ability to perform occupational tasks that require repetitive kneeling, squatting, stair or ladder climbing, or prolonged standing/walking. The examiner also found the Veteran was expected to have difficulty with employment which demands significant physical exertion such as lifting greater than 20 pounds, bending, walking, climbing, crawling and kneeling. However, the Veteran should be able to work a full-time job in a sedentary position provided that he has reasonable accommodations. See December 2019 VA examination. VA treatment records also show that, in October 2010, the Veteran left his most recent position at AT&T customer service due to the excessive pressure. In August 2013, the Veteran reported he could not stand up or sit down for more than 30 minutes and this made it difficult for him to find a job. In January 2016, the Veteran reported that sometime after 9/11 he noticed his back pain started to bother him when sitting or standing for extended periods, mainly at work. He noted that his back muscles would tighten up and both legs would start to go numb. However, he did not mention that his knee conditions impacted his ability to sit or stand for extended periods. In April 2017, the Veteran attended a primary care appointment where he reported that he has not worked for 14 months and he was laid off when his company closed. He also reported that he was not able to find a job because he was not able to stand up or sit for more than 30 minutes. The Board acknowledges the June 2012 Social Security Administration (SSA) disability determination, which shows that the Veteran's disability award was based on disorders of the back and other osteoarthrosis and allied disorders. As this determination includes the Veteran's nonservice-connected back disorder, this disability determination is not probative of whether the Veteran's service-connected disabilities, alone, would render him unable to secure and follow a substantially gainful occupation. For SSA disability evaluation purposes, the Veteran appears to have also reported the impact his service-connected knee disabilities. He reported that daily pain in his knees made it difficult to walk, stand or sit. Further, the Veteran indicated in the function report that he could not stand or sit for over 20 to 30 minutes without pain in his legs or back. In March 2021, an advisory opinion was procured from the Director of Compensation Service consistent with the February 2021 Board remand directives. The Director acknowledges that the medical evidence showed limitations to prolonged sitting, standing, and ambulating and that a high rating in-itself recognizes that the impairment makes it difficult to obtain and keep employment. The Director noted, however, that her determination evaluated whether the Veteran was incapable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In consideration of this, she concluded that the evidence failed to support the contention that any of the Veteran's service-connected disabilities or a combination of the effects of those disabilities prevented gainful employment. After a careful review of the evidence record, the Board finds that the preponderance of the evidence is against the award of a TDIU rating on an extraschedular basis. While the Board does not deny that the Veteran's service-connected disabilities impacted his ability to work to some degree, the preponderance of the evidence is against a finding that his service-connected disabilities prevented him from securing or following a substantially gainful occupation. In that regard, while the Veteran consistently reported that his ability to perform physical labor was impacted by his service-connected knee conditions due to impaired ability to walk or stand for prolonged periods of time, the record does not reflect that he would be prevented from following/securing other nonphysical occupations. The Board acknowledges that, during the May 2017 VA examination, the Veteran reported pain with prolonged sitting. Significantly, however, during a January 2016 VA chiropractic appointment, the Veteran reported that it was his nonservice-connected back condition which impacted his ability to sit for prolonged periods of time. Additionally, the most recent VA examiner found the Veteran had difficulty with employment which demands significant physical exertion such as lifting greater than 20 pounds, bending, walking, climbing, crawling and kneeling. The examiner, nevertheless, concluded that the Veteran should be able to work full time with a sedentary job such as in an office setting. (Continued on the next page) In sum, while the record suggests that the Veteran may have been unemployable due to the combination of his nonservice-connected back and other physical disabilities, the preponderance of the evidence is against a finding that his service-connected knee disorders, alone, prevented him from being able to secure or follow a substantially gainful occupation. Accordingly, the Board finds that the criteria for a TDIU including on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. PAUL E. METZNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.