Citation Nr: 21030924 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 13-12 749 DATE: May 20, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is granted, effective April 25, 2013. REMANDED Entitlement to a rating in excess of 10 percent for right knee recurrent lateral instability. Entitlement to a rating in excess of 20 percent for right knee limitation of extension is remanded. Entitlement to a TDIU from March 31, 2012 to April 24, 2013 is remanded. FINDING OF FACT Effective April 25, 2013, the Veteran meets schedular requirements for a TDIU and is unable to obtain and maintain employment because of his service-connected disabilities. CONCLUSION OF LAW Effective April 25, 2013, the criteria for entitlement to a total disability rating due to individual unemployability (TDIU) based on service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1974 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2019. The Board remanded this claim for additional development in August 2019. In its August 2019 decision, the Board also granted the Veteran a 20 percent rating for dislocated right knee semilunar cartilage with frequent episodes of locking, pain, and effusion. As a result, the Board will not address this issue in this decision. TDIU The appeal period before the Board begins on August 12, 2010, the date VA received his claim for increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Board contends that he is unable to obtain and maintain employment as a result of his service-connected disabilities. A total disability rating 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 the result of 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 age or the impairment caused by nonservice-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 veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the following: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., 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 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 work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). First, the Board notes that the Veteran meets schedular requirements as April 25, 2013 and the appeal period before the Board begins on August 12, 2010. However, the Veteran reports he last worked full-time on March 30, 2012. The Veteran is not entitled to a TDIU from August 12, 2010 to March 30, 2012 because he was working full-time and as a result was able to obtain and maintain employment during this time period. The Board will discuss the period from March 31, 2012 to April 24, 2013 in the REMAND portion of this decision. The Veteran has a one year of college education. See August 2019 VA Form 21-8940. His work history consists of work as a service technician. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that the Veteran's service-connected disabilities prevented him from securing and following substantially gainful employment since April 25, 2013. Based on the physical limitations by the Veteran's service-connected knee and ankle disabilities, the Veteran is unable to perform jobs consistent with his service technician manual labor occupational history. He reports that he stopped working and was forced to retire due to his disabilities. See May 2019 VA 21-8940. He is unable to walk or stand for long periods of time and sitting causes discomfort. He has stiffness, numbness, and tingling in his joints and at times he has swollen joints and legs. He loses his balance and his knees give way, and his tinnitus further limits his ability to work due to additional difficulty understanding speech. See SSA records. His daughter submitted a lay statement detailing his difficulty performing routine activities. She highlights that over the years his disabilities have resulted in further limitations in physical activity and that these limitations have negatively impacted his life. He is also limited in his ability to perform work requiring bending, climbing, prolonged sitting, standing, and walking. Thus, based on the Veteran's specific occupational history, the Board finds the Veteran is unable to obtain employment as of April 25, 2013. REASONS FOR REMAND In the August 2019 decision, the Board specifically outlined the Veteran's complaints of flare ups and worsening knee pain. More specifically, the Board noted that the Veteran reported experiencing flareups in his May 2015 and August 2019 VA examinations. He reports having severe flare up episodes twice every three months, lasting one week. During these time periods, he reports the inability to run and garden. The Board directed the RO to issue an addendum opinion and provide the Veteran with a new VA examination assessing his knee pain. The December 2019 VA examiner performed a new VA examination and found that the Veteran did not suffer from flareups. Subsequently, the RO asked for an addendum opinion addressing flareups and the September 2020 VA examiner stated that he was unable to assess what the Veteran's functional limitation would be with flareups and that the December 2019 VA examination was an accurate representation of the Veteran's disability. The Board specifically directed the RO to issue an addendum opinion as to the Veteran's previous complaints of flareups. As noted in the Board's last decision, the United States Court of Appeals for Veterans Claims (Court) has issued the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so. As the RO did not substantially comply with the Board's directive in its August 2019 Board decision, remand is necessary. TDIU from March 31, 2012 to April 24, 2013 The Veteran reports that he last worked in March 30, 2012. From March 31, 2012 to April 24, 2013, the Veteran did not meet schedular requirements for a TDIU. As resolution of the claims for increased rating for the Veteran's knees is inextricably intertwined with his claim for a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009 The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for appropriate VA examination to determine the current nature and severity of his right knee disability. The examiner should identify all lumbar spine and right knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (Continued on the next page) The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ijitimehin, Kemi D. 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.