Citation Nr: 21031555 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-15 094A DATE: May 24, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis prior to December 1, 2010, is denied. FINDING OF FACT Prior to December 1, 2010, the Veteran's only service-connected disabilities of left knee instability, rated 10% disabling, and left knee degenerative arthritis with patellofemoral pain syndrome, rated 10% disabling, did not preclude the Veteran's obtaining or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU rating due to service-connected disabilities on an extraschedular basis prior to December 1, 2010, have not been met. 38 C.F.R. §§ 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1976 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). A March 2021 Board decision granted a separate 10% rating from February 25, 2010, to September 3, 2020, for left knee instability; granted a separate 20% rating from September 4, 2020 for left knee instability; granted a separate 10% rating from December 1, 2010, to September 3, 2020, for right knee instability; granted a 20% rating from September 4, 2020, for right knee instability; and effective December 1, 2010, granted a schedular TDIU rating based on individual unemployability due to service-connected disabilities. The matter of entitlement to a TDIU rating on an extraschedular basis prior to December 1, 2010, was remanded for referral of that matter to the VA Director of Compensation Service. The case has now been returned for appellate consideration 1. Entitlement to a TDIU rating on an extraschedular basis prior to December 1, 2010 The March 2021 Board remand noted that prior to December 1, 2010, the Veteran's only service-connected disabilities were left knee arthritis rated as 10 percent disabling; and his left knee instability rated as 10 percent disabling. Effective February 25, 2010, his overall combined disability rating was 20 percent. Therefore, prior to December 1, 2010, he did not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). However, where the percentage requirements for a TDIU were not met, a TDIU rating may nevertheless be assigned on an extraschedular basis if the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). In such cases extraschedular entitlement to a TDIU rating must be submitted to the Director of Compensation Service for initial adjudication. Id. Referral under 38 C.F.R. § 4.16(b) does not require that the preponderance of the evidence show that a claimant is unemployable. Rather, as the U. S. Court of Appeals for Veterans Claims (Court) has explained, the "initial extraschedular referral decision under § 4.16(b) addresses whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). In Ray v. Wilkie, 31 Vet. App. 58, 65 (2019) the Court acknowledged that "the decisions to refer and to award a[n extraschedular TDIU] rating are fundamentally different" and that a referral decision does not require the Board to award an extraschedular rating. In Wages v. McDonald, 27 Vet. App. 233, 238 (2015) the Court found that while the neither the AOJ nor the Board may award an extraschedular TDIU rating in the first instance, a decision by the Director of Compensation Services as to an extraschedular TDIU rating is not binding on the Board and the Board may review the Director's decision because it is, in effect, an adjudication, and as such does not constitute evidence, including opinion evidence, upon which the Board may rely or place any probative value. See Wages v. McDonald, 27 Vet. App. 233, 238 (2015). The Court in Ray v. Wilkie, 31 Vet. App. at 66-67 suggested that the certitude or equivocality of the Board's language in a referral decision could affect the amount of explanation required when there is deviation at the award stage. In this regard, in the Board's March 2021 remand it was stated that the evidence of record indicated that the Veteran stopped working as a mechanic at the water company in 2007, and a March 2010 VA examiner noted that his left knee disability caused decreased mobility, decreased strength, and pain, and that he would likely have to be assigned different employment duties. The examiner also noted that his left knee disability would prevent exercise and sports; that it would cause severe problems with chores, shopping, and traveling; and that it would cause moderate problems with recreation, bathing, dressing, toileting, grooming, and driving. The Board stated the March 2021 remand that the evidence "suggests" that the Veteran's service-connected disabilities rendered him unemployable prior to December 1, 2010. No specific finding as to his actual ability to obtain or retain substantially gainful employment was made by the Board in the March 2021 remand. On March 16, 2021 the AOJ referred the matter to the VA Director of Compensation Service, noting that on VA Form 21-8940 the Veteran reported his service-connected left knee (arthroscopy) and low back condition prevented him from securing or following any substantial gainful occupation. However, he only became service connected for a low back disability on December 1, 2010. He had completed high school and had two years post-secondary education. In the referral, the AOJ recommended denying an extraschedular TDIU rating because it was believed that although the Veteran would have impairment with employment, his service-connected disabilities (as then in effect) would not have prevent employment. On March 17, 2021, the VA Director of Compensation Services denied entitlement to an extraschedular TDIU rating. In doing so it was noted that in Withers v. Wilkie, 30 Vet. App. 139 (2018) the Court had stated that a finding of an ability to work was not a medical determination, but was a legal determination made on a case-by-case basis. It was observed that his VA Form 21-8940, received in 2019, showed that he had not made any attempt to obtain sedentary work. The Director considered lay statements; however, greater weight was given to the objective medical evidence of record. The Director concluded that the Veteran was not precluded from sedentary employment due to service-connected conditions prior to December 1, 2010. The rationale was that: The Veteran ha[d] [service-connected] conditions which could have functional impact and impair prolonged activities ... a high rating in-itself recognizes that the impairment makes it difficult to obtain and keep employment. The American workplace has had a dramatic shift in the labor force over the last several decades. Americans generally have less strenuous jobs compared to those of years ago. The decline is due in part to the increasing reliance on computers, Internet, and e-mail. There are many jobs in the workplace that require only light activity. In addition, technological advances (such as communication devices and adaptive equipment) have broadened employment opportunities for the disabled with reasonable accommodations that were not previously available. This decision evaluates whether the Veteran, because of [service-connected] disabilities, is incapable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Director found, in essence, that the Veteran was capable of performing sedentary employment prior to December 1, 2010. Additionally, the Board notes that although the Veteran has suggested that his left knee disability played a part in his ceasing to work, a March 23, 2012 VA General Medical examination specifically reported that he had been unemployed since 2007 because after a back injury he was unable to work anymore. Also, in the July 2014 VA Form 21-4192, Request for Employment Information, the Veteran reported that he had been forced to quit his last job, and his employer stated that the reason for his termination in 2007 was a "back condition." Consequently, the Board gives no credence to his much later reports that his left knee disability led to his being unable to work, prior to December 1, 2010. In this regard, the Board notes that "unable to secure and follow substantially gainful employment" in 38 C.F.R. § 4.16(a) comprises both economic and noneconomic components, which required consideration of a wide range of factors and one is a veteran's ability to perform sedentary activities. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (also holding that Social Security Administration (SSA) regulations defining "sedentary" are not binding on VA). Withers Wilkie, 30 Vet. App. 139, 148 (2018) held that while 38 C.F.R. § 4.16 "does not make the concept of sedentary work an explicit TDIU factor" if TDIU is denied because "a veteran is capable of sedentary work" this must be explained in the context of that case." Thus, while not a legally governing consideration, the ability to perform sedentary work can be a relevant factor and a finding that sedentary employment is possible can be determinative when explained in relation to past education and occupational history. See id. However, neither VA nor the Court has explicitly defined the term "sedentary employment." Withers, Id. The Board finds that sedentary employment is the common meaning in society of non-physical, white collar, office-type work. While acknowledging that the Veteran's service-connected left knee disorders would reasonably cause some occupational limitations-particularly in employment that is physically intensive, alone his service-connected left knee disabilities were not severe enough to prevent him from securing or following substantial employment that is relatively non-labor-intensive and does not require repeated heavy and/or repetitive lifting, prolonged sitting, standing, etc. Based on the evidence of record, the Board finds no readily apparent reason why the Veteran would not be able to secure and follow substantially gainful employment performing clerical work or other office work in light of his two years of college education and work experience in operating a restaurant, taking necessary precautions (e.g. avoiding lifting heavy items) and regular breaks as needed. Indeed, an April 2011 VA examiner opined that despite left knee disability, the Veteran could do all jobs that did not require strenuous physical activity, including all kinds of desk jobs, sedentary jobs, or passive activities. The Board finds that the Veteran's two years post-secondary education aligns with an ability to perform sedentary work of an unskilled or semi-skilled nature that does not require specialized training, such as clerical, inspection, or assembly work. The Board envisions potential sedentary employment to encompass administrative, managerial or other forms of employment that would not require the Veteran to spend a significant amount of time standing, ambulating or physical activity requiring lifting, bending, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks to get up from a sitting position. So, he would be capable of a variety of forms of employment that require some degree of writing, arithmetic, computer skills, or other tasks consistent with his work history. The Board concludes that the preponderance of the evidence demonstrates that prior to December 1, 2010 the Veteran could perform sedentary work because he could perform jobs that would allow him to sit or stand at will or take breaks to sit or stand as needed. To the extent that the Veteran's left knee symptoms would require unscheduled breaks to alter position, or recuperate from prolonged sitting or prolonged standing, the evidence does not reflect that an employer could not make reasonable accommodations (e.g. breaks to allow him to move his legs, stand or walk for a few minutes, etc.) for the Veteran. The Americans with Disabilities Act (ADA) mandates reasonable accommodations for employees with substantial disabilities so long as the employee can satisfactorily perform the work once those accommodations are made. See 42 U.S.C. Chapter 126. No evidence is of record demonstrating that the Veteran requires any workplace accommodations that would be extraordinary or beyond those that would be required by the ADA. (Continued on the next page) On balance, the weight of the evidence is against the claim for an extraschedular TDIU rating. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.