Citation Nr: 21031345 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 10-34 237 DATE: May 21, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The weight of the evidence is against finding that the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2001 to March 2009. VA received the Veteran's service connection claim for a right knee disability on February 6, 2009, prior to his separation from the military. As such, the relevant period on appeal begins on March 6, 2009, the day after his separation from the military. A June 2009 rating decision granted the Veteran service connection for a right knee disability. The Veteran disagreed with the assigned rating and this appeal ensued. During the pendency of the appeal for an increased rating for his right knee disability, the Veteran indicated that after the repair of his right knee ACL, he had been unable to return to work. Based on that report, a June 2017 Board decision inferred a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 47 (2009). A subsequent April 2018 Board decision denied entitlement to a TDIU. The Veteran appealed the April 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Court granted a Joint Motion for Partial Remand (JMPR). The Court vacated the Board's April 2018 decision and remanded the case for further development in compliance with the directives specified in the JMPR. In particular, the JMPR ordered that the Veteran be provided with a VA examination which complied with Correia v. McDonald, 28 Vet. App. 158 (2016). The Court also directed the Board to consider again the TDIU issue, including whether referral of a claim for an extraschedular TDIU for the period prior to July 1, 2015 to the Director, Compensation Service, was warranted. In March 2020, the Board remanded the case to the Regional Office (RO) for additional development of the record, pursuant to the directives specified in the JMPR. After the requested development took place, a September 2020 Board decision denied the Veteran's increased rating claim for a right knee disability, but remanded the claim for a TDIU for further development. As such, the only issue remaining on appeal is the claim for a TDIU. Specifically, the Board remand noted that the record indicated that the Veteran worked as a shipyard operator, construction worker, and equipment driver, but noted that his recent employment history was unclear. On remand, the Board sought information regarding the Veteran's employment and requested that he complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Board also found that medical opinions regarding the combined effects of the Veteran's physical and mental disabilities were needed. The Veteran was sent correspondence in September and November 2020 requesting the Veteran provide a completed VA Form 21-8940. VA did not receive a response from the Veteran and sent him a Final Attempt Letter in January 2021, requesting that the Veteran provide the requested information. However, VA received a notice of returned mail in February 2021 because the letter was not deliverable as addressed and was unable to be forwarded. The Board notes that the Veteran was sent subsequent correspondence in April 2021, which shows a new address. Given that the Veteran was on notice that he was requested to provide a completed VA Form 21-8940 based on the March 2020 Board remand, the Board will proceed with adjudication of the claim. To the extent that the Veteran believes that he has been prejudiced by not receiving a formal request to complete the VA Form 21-8940, he is invited to submit a supplemental claim, and if filed within one year, will preserve the date of claim. A TDIU is denied. The issue of a TDIU was raised by the record, when the Veteran indicated that after the repair of his right knee ACL, he had been unable to return to work. As previously discussed, the Veteran's recent employment history is unclear because he has not provided the requested VA Form 21-8940. The last indication of the Veteran's employment status was that he was employed as a construction worker in 2017. See Mental Health Treatment Record dated October 20, 2017. Here, although the Veteran's employment status since October 2017 is unclear, the Board will nonetheless proceed with adjudication of the Veteran's TDIU claim, with the evidence of record. Total disability will be considered to exist 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. 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, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). To prevail on a claim for a TDIU, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is considered unemployable if found that his or her service-connected disabilities result in being unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16. In Ray v. Wilkie, 31 Vet. App. 58, 71 (2019) the Court interpreted the phrase "unable to secure and follow a substantially gainful occupation" to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, and the noneconomic component requires more than determining the presence or absence of employment producing income exceeding any particular threshold. The ultimate inquiry on the Veteran's ability to secure or follow that type of employment. The Court also provided that to determine whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to 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 of lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Also, for consideration is 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 concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. While not a checklist, these are potentially relevant factors for consideration if raised by the evidence. The Veteran is service-connected for the following disabilities; depressive disorder rated at 50 percent, from July 1, 2015; a lumbar spine disability rated at 10 percent, from March 6, 2009; a right knee disability rated at 10 percent from March 6, 2009; tinnitus rated at 10 percent from March 6, 2009; residuals of a tumor removal from the face rated at 10 percent from March 6, 2009; residuals of an ACL tear rated at 10 percent from October 2, 2013, 100 percent from October 30, 2014, and 10 percent from February 1, 2015; removal of the right meniscus from February 1, 2015; a right elbow disability rated as noncompensable from March 6, 2009, 100 percent from September 16, 2015 to December 1, 2015, and 10 percent from December 1, 2015; sarcoidosis rated as noncompensable from March 6, 2009; a left elbow disability rated as noncompensable from July 1, 2015; a right elbow and knee surgical scars rated as noncompensable. Here, the Veteran met the requirements for a TDIU as of July 1, 2015. As the Veteran does not meet the schedular criteria for a TDIU, from March 6, 2009 to July 1, 2015, the Board must consider whether the Veteran has nevertheless demonstrated that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16 (b). However, after a review of the competent evidence of record, the Board finds that referral for extraschedular consideration of a TDIU rating is not warranted. A review of the evidence of record, which includes the Veteran's post-service treatment records, his lay statements, and his VA examination reports, when taken in total, does not suggest that the Veteran is unable obtain or maintain substantially gainful employment as a result of his service-connected disabilities. Further, there has been no competent medical opinions suggesting the inability to obtain or maintain gainful employment. The Veteran was afforded a VA examination in March 2009 for his back, elbows, right knee, and tinnitus. On examination, his lumbar spine revealed no evidence of radiating pain on movement and showed full range of motion; his elbows showed no symptoms, retained full range of motion, and were not limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use; his right knee showed full range of motion with no evidence of pain; and reported that his tinnitus occurred about 2 times a week and lasted for about .01 hours. These examinations were done to ascertain whether service connection was warranted and opinions regarding whether any of these disabilities would impact his ability to work were not provided. The Veteran was afforded a VA examination for sarcoidosis in December 2015. The examiner reported that the Veteran did not have any complications from the sarcoidosis. The examiner also noted that the Veteran was diagnosed with sarcoidosis in-service, but did not have current symptoms. The Veteran was afforded a VA examination for his elbows in December 2015. The Veteran was noted to have undergone a right elbow bursectomy excision in September 2015 and his left elbow was found to have olecranon bursitis. On examination, there was no evidence of pain, in either elbow. The examiner indicated that the Veteran did not have any symptoms in his right elbow after the bursectomy and was symptom free in his left elbow. The Veteran was afforded a VA examination for his lumbar spine in December 2015. The Veteran reported that he had chronic back pain, with on and off stiffness. The examiner noted that the Veteran's reported symptoms did not functionally limit him. The Veteran was afforded a VA examination for depressive disorder in December 2015. The examiner indicated that the Veteran had the following symptoms; depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and a difficulty in adapting to stressful circumstances. The Veteran was afforded a VA examination for his right knee in May 2016. The examiner noted that the Veteran had ACL reconstructive surgery in 2015 and the Veteran reported that his right knee symptoms stayed about the same after the surgery. He reported that he could not run or drive for long periods of time. The examiner reported that the Veteran's right knee disability impacted his ability to work because it was difficult to drive his truck. The Veteran was afforded a VA examination for his right knee in August 2017. The Veteran reported that he had no complaints with his right knee. The examiner reported that he was in no acute distress with a crutch bound gait and did not appear to be in any significant pain. The examiner indicated that the Veteran's right knee disability impacted his ability to work because he had difficulty with locomotion and prolonged standing and walking, due to frequent pain and swelling. The Veteran was afforded a VA examination for his right knee in March 2020. The Veteran reported that his current symptom was pain when going upstairs, bending, driving, and standing for long periods of time. The examiner indicated that the Veteran's right knee disability impacted his ability to work because he had difficulty performing occupational tasks that would require sitting, standing, and walking for extended periods of time, in addition to having difficulty using stairs, kneeling, squatting, or sudden motion of either knee. As previously discussed, the September 2020 Board remand sought to obtain the Veteran's completed VA Form 21-8940. In addition to the requested information, the Board also remanded the issue of a TDIU to obtain a medical opinion regarding the combined effects of the Veteran's service-connected physical and mental disabilities. Pursuant to the September 2020 Board remand, a medical opinion regarding the Veteran's physical disabilities was rendered in December 2020. The examiner reported that the Veteran's usual job was a construction worker and due to his service-connected back, knee, and elbow problems, he would have problems with activities like standing, sitting, or walking for more than 30 minutes. He would also have trouble bending, kneeling, using stairs, and holding or lifting heavy objects (more than 20 pounds). The examiner indicated that there were no effects on employment regarding the tumor removal of the face, or scars of the knee or elbow and his sarcoidosis was currently asymptomatic and would not affect employment. Pursuant to the September 2020 Board remand, a medical opinion regarding the Veteran's mental disability was rendered in February 2021. The examiner noted that the Veteran's service-connected depressive disorder was rated at 50 percent, but also reported that it did not render him incapable of work, but may need accommodations such as having limited social interaction and frequent periods of rest. He should otherwise be able to execute normal, multistep tasks. The Veteran was afforded a VA examination for depressive disorder in February 2021. The examiner indicated that the Veteran had the following symptoms; depressed mood, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, and difficulty adapting to stressful circumstances. The examiner did not render an opinion regarding the impact the Veteran's mental disorder had on his ability to work because an opinion was rendered related to the September 2020 Board remand. Here, the evidence of record indicates that the Veteran has been employed during the entire period on appeal. The Board acknowledges that the Veteran appears to have taken time off of work after his ACL surgery in 2015, but the August 2017 and March 2020 VA examinations show that he appears to have recovered from the procedure. Pursuant to the September 2020 Board remand, the Veteran was sent correspondence seeking his recent employment history. However, the Veteran has not responded. Ultimately, it is a rating consideration as to whether the Veteran is able to obtain or maintain substantially gainful employment. Here, the medical evidence of record in this case does not suggest that the Veteran has been so functionally limited solely by his service-connected disabilities as to be unable to obtain or maintain substantially gainful employment. VA medical opinions that weigh against the Veteran's claim for a TDIU are persuasive and found to have great probative value, as they were provided after the examiners had an opportunity to interview the Veteran, review his record, and conduct physical examinations of the Veteran. Although the December 2020 VA examiner acknowledged that the Veteran's aggregate of physical disabilities impacted his ability to work, such would be expected and is the reason a high disability rating has been assigned. Likewise, the February 2021 VA examiner acknowledged that the Veteran's mental disorder would require accommodations, but there has been no indication that it would preclude work entirely. The Veteran has not submitted any medical opinion regarding an inability to sustain substantial gainful employment due to his service-connected disabilities. The Board points out that the Veteran has not specifically asserted that his service-connected disabilities have rendered him unable to work. The Veteran did report in July 2015 that he was unable to return to work because of his right knee, but the evidence of record indicates that he was employed as a construction worker in 2017. See Mental Health Treatment Record dated October 20, 2017. As such, evidence has not to date been submitted showing that the Veteran is not working at the present time. Here, the Veteran has reported pain in his low back and right knee that cause problems with standing, sitting, walking, bending, kneeling, and using stairs and that his mental disorder causes problems with social interaction. However, he has not provided evidence to show that he is unable to obtain or maintain substantially gainful employment. The medical findings of the VA examiners of record directly address criteria under which a TDIU is assigned. The Board finds the opinions of the VA examiners of record to be the only competent medical evidence of record. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). While the Board does not wish to minimize the nature and extent of the Veteran's overall disability picture, the evidence of record does not support a finding that his service-connected physical and mental disabilities, in concert, are sufficient to render him unable to obtain or maintain substantially gainful employment. The Board also acknowledges the Veteran's complaints of back and knee pain and his assertion that it causes problems with going upstairs, bending, driving, and standing for long periods of time; and notes that the December 2020 VA examiner found that the Veteran would have difficulty with activities such as standing, sitting, or walking for more than 30 minutes, bending, kneeling, using stairs, and holding or lifting heavy objects. However, the examiner did not indicate that the Veteran would be precluded from employment. Similarly, the February 2021 VA examiner for mental health disorders also did not indicate that employment would be precluded, but opined that the Veteran would be able to function with limited social interaction and frequent breaks. In addition, the Veteran has not identified or submitted any competent medical evidence or opinions demonstrating that his service-connected disabilities, individually or in concert, preclude him from securing and maintaining substantially gainful employment at any time during the period on appeal. Additionally, referral for a TDIU on an extraschedular basis, prior to July 1, 2015, is not warranted. While the Veteran might have difficulty in performing physical jobs due to his service-connected physical disabilities and would require limited social interaction and frequent breaks, a TDIU is only warranted when service-connected disabilities prevent obtaining or maintaining substantially gainful employment. Here, it simply has not been shown that the Veteran's service-connected disabilities have prevented him from obtaining or maintaining substantially gainful employment at any time during the period on appeal. Given that there has been no competent evidence showing that the Veteran was precluded from substantially gainful employment at any time during the period on appeal, the Board finds that referral to Director of VA's Compensation Service is not warranted. Further, the Veteran has not provided any indication that he is currently unemployed. Accordingly, a TDIU rating from July 1, 2015, forward is denied; and referral for a TDIU on an extraschedular basis, prior to July 1, 2015, is not warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.