Citation Nr: 21030847 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 09-20 637 DATE: May 19, 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 does not meet the schedular criteria for assignment of a TDIU, and the preponderance of the evidence is against finding that the Veteran's service-connected disabilities alone present an exceptional or unusual disability picture productive of marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for entitlement to a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1978 to July 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board, most recently in June 2018, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. Entitlement to a TDIU, to include on an extraschedular basis. The Veteran contends that he is entitled to TDIU. Based on the evidence of record, the Board finds that a grant of TDIU, to include on an extraschedular basis, is not warranted. The law provides that a TDIU may be granted upon a showing that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or his service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. 38 C.F.R. § 4.16(a). Where a veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The Veteran is service-connected for lumbar myositis with diminished disc space and lumbar strain at 20 percent from November 14, 2007, right knee degenerative joint disease at 10 percent from November 14, 2007, left knee degenerative joint disease at 10 percent from November 14, 2007, and tinnitus at 10 percent from February 22, 2016. The Veteran's combined disability rating is 40 percent from November 14, 2007. Therefore, the Veteran does not meet the schedular criteria for TDIU and his claim must be considered under the criteria of 38 C.F.R.§4.16(b). Because the Director has already denied an extraschedular TDIU under 38 C.F.R. § 4.16(b), the Board may consider an appeal for an extraschedular TDIU. Turning to the evidence of record, the Veteran reported he last worked full-time in August 2007, at which time he claims he stopped working as a result of his service-connected back and bilateral knee disabilities. He has work history as a security guard. The Veteran has completed two years of college education. At a March 2010 VA examination, it was noted that the Veteran's disabilities manifested swelling, tenderness, and severe pain in both knees and low back pain. The examiner noted that the Veteran had retired in July 1998 because he was eligible due to age and duration of work. The examiner noted flare-ups in the knees with running or prolonged walking and that his knee disabilities would prevent participation in sports. Other daily activities affected included chores, shopping, exercise, recreation, traveling, dressing, and driving. As to the Veteran's back disability, he would be prevented from participation in sports, and other daily activities affected included chores, shopping, exercise, recreation, traveling, bathing, and dressing. At a May 2016 VA audiology examination, the Veteran's tinnitus was not found to impact his ability to work. At an August 2017 VA knee examination, the Veteran reported increased knee pain and stiffness that caused decreased endurance with standing, walking and sitting. The examiner found that the Veteran's knee disabilities impacts his ability to work, stating that the Veteran has limitation of range of motion (ROM) due to his service-connected left and right knee disabilities and pain accompanies effort to bend the knees and stand from a seated position. Additionally, the examiner noted that the Veteran is limited in carrying objects that weigh 10 or more pounds, doing activities that require walking on irregular surfaces, repetitively going from sitting to standing and vice versa, climbing stairs or ladders, would be limited to sedentary or semi-sedentary type activities, and should not participate in high impact activities. At an August 2017 VA back examination, the Veteran reported constant back pain with stiffness of his back. He reported difficulty standing from a seated position and increased back pain when he bends forward. His back pain was sharp and pressured and increased in intensity with prolonged sitting, standing, walking, activities that involve bending at the trunk, or if he has to carry a moderate weight. The examiner found that the Veteran's back disability impacts his ability to work, stating that the Veteran has limitation of range of motion due to his service connected back condition and pain accompanies effort to bend or twist his trunk, or to lift and carry objects. He is limited in lifting, pushing, pulling or carrying objects, cannot carry objects that weigh 10 or more pounds, cannot do activities that require rapid trunk movement, such as repetitively going from sitting to standing and vice versa, is limited to sedentary type activities, and should not participate in high impact activities. A review of the record shows that the Veteran receives periodic treatment for his service-connected disabilities. However, a review of the treatment notes of record do not show the Veteran to have symptoms worse than those reported at his VA examinations or to have frequent periods of hospitalization. In a July 2020 Advisory Opinion, the Director of Compensation Service denied entitlement to a TDIU on an extraschedular basis. In this regard, the Director of Compensation Service found that the Veteran was not working as he had retired and that his service-connected disabilities were not of a severity so as to prevent the Veteran from obtaining and maintaining gainful employment. Specifically, the evidence did not support that the Veteran's service-connected disabilities resulted in occupational and social impairment with reduced reliability and productivity or worse. Furthermore, the available evidence did not show marked interference with employment or frequent periods of hospitalization due to service-connected disabilities. After reviewing the Veteran's education and work history, the Director ultimately concluded that the effects of the Veteran's service-connected disabilities did not prevent him from all forms of employment, including sedentary-type work activities. Thus, TDIU on an extraschedular basis was not warranted. The Board agrees with the finding made by the Director of Compensation Service Specifically, the Board finds that the evidence weighs against a finding that the Veteran's service-connected disabilities alone rendered him unemployable or unable to secure and follow a substantially gainful occupation. The Board acknowledges that the Veteran would experience some limitation as a result of his service-connected disabilities. However, the totality of the evidence weighs against the claim and shows that his service-connected disabilities would merely impair his ability to work, but that such impairment is already explicitly contemplated by the criteria for his back, knee, and tinnitus ratings. While his back and knee disabilities do cause regulation of activities, there is no indication from the record that his service-connected disabilities would prevent him from engaging in sedentary-type employment, such as working as a security guard at a front desk. Further, the Veteran's education would allow him to be successful in a sedentary-type employment setting. There is no indication from the record that his back disability, knee disabilities, and tinnitus would prevent him from performing such activity. As such, the symptoms of his service-connected disabilities are not of such severity such that the Veteran would be prevented from obtaining and maintaining gainful employment consistent with his education and work experience. Additionally, the evidence does not show that the Veteran's lumbar, bilateral knee, and tinnitus disabilities have resulted in frequent periods of hospitalization. Therefore, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure and follow substantially gainful employment consistent with his education and work experience. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU, to include on an extraschedular basis, is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.