Citation Nr: 21031824 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-07 361 DATE: May 24, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 1, 2016, to include on an extraschedular basis is denied. FINDING OF FACT Prior to February 1, 2016, the preponderance of the evidence weighs against a finding that the Veteran's service-connected disabilities alone precluded him from obtaining or maintaining a substantially gainful occupation consistent with his education, training, and experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to February 1, 2016, to include on an extraschedular basis, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1990 to March 1995. This matter comes before the Board of Veteran's Appeals (Board) from an August 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that granted a TDIU, with an effective date of February 1, 2016. This matter was previously before the Board in May 2018 and December 2020 when it was remanded for additional development. The Board finds the remand directives have been substantially complied with, and the matter is again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 1, 2016, to include on an extraschedular basis By way of history, the Veteran's TDIU claim was inferred by the Board, pursuant to Rice, in an August 2017 decision that also remanded the issue of entitlement to an initial evaluation in excess of 30 percent for left total knee arthroplasty as of February 1, 2016 and the issue of entitlement to an initial compensable rating for hypertension. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's claim was remanded by the Board in May 2018 to provide him with a VA Form 21-8940 (TDIU claim form). The Veteran was awarded a TDIU in an August 2020 rating decision. The RO found that the Veteran's service-connected left knee disability precluded him from obtaining and following a substantially gainful employment. The effective date assigned to the TDIU was February 1, 2016. See August 2020 rating decision. The Veteran appealed to the Board, asserting entitlement to TDIU prior to February 1, 2016, to include on an extraschedular basis. The Veteran's claim was remanded by the Board in December 2020. Since the Veteran did not meet the schedular requirements for a TDIU prior to February 1, 2016, the Board remanded the Veteran's claim to be referred to the Director of Compensation Services for extraschedular consideration from January 25, 2013 until December 9, 2014. In regards to entitlement to a TDIU prior to January 2013, the Board noted in July 2011, the Veteran's representative presented a claim for a TDIU. See July 2011 Third Party Correspondence; amended in August 2011. In September 2011, VA sent the Veteran an updated VCAA notice including the issue of unemployability. See letter dated September 2011. In October 2011, the Veteran submitted a written statement where he explained he was placed on a medical hold following his knee surgery in 1995 and that he lost his employment in September 2006. See October 2011 Correspondence. In October 2012, the Veteran's representative reiterated the Veteran's claim for a TDIU. See October 2012 Third Party Correspondence. The Board further noted a January 2013 rating decision deferred the issue of a TDIU; however, a subsequent rating decision that same month denied the TDIU claim. The Veteran did not appeal this decision. Thus, the Board found no basis for consideration of a TDIU prior to January 2013, nor any pending TDIU claim prior to that date. The Board also found that, as for the appeal period from December 10, 2014 until January 31, 2016, TDIU consideration is moot in view of Bradley; as the Veteran was in receipt of a 100 percent disability rating for that period due to his service-connected left knee disability. See Bradley v. Peake, 22 Vet. App. 280 (2008). Although the award of a 100 percent disability rating does not necessarily render moot a claim of entitlement to a TDIU; in the present case the consideration of a TDIU for the period from December 10, 2014 until January 31, 2016 is moot as the Veteran's TDIU award is predicated upon his left knee disability and that same disability was awarded a temporary 100 percent disability rating pursuant to on surgical treatment necessitating convalescence for the appeal period from December 10, 2014 until January 31, 2016. See Bradley, 22 Vet. App. 280. Under these circumstances, a TDIU award during the specified appeal period would constitute a duplicate counting of disabilities, which is impermissible. Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.19 (2020); Van Hoose v. Brown, 4 Vet. App. 361 (1993). For the time period prior to February 1, 2016, the Veteran's compensable service-connected disabilities included right hand carpal tunnel syndrome evaluated as 10 percent disabling from March 1995, 20 percent disabling from July 2004, and 30 percent disabling from September 2010; left knee with degenerative arthritis evaluated as 10 percent disabling from November 2011 to December 2014; left knee post-operative ligament repair evaluated as 10 percent disabling from March 1995, 20 percent disabling from July 2004, and 10 percent disabling from March 2012 to December 2014; degenerative disc disease of the lumbar spine evaluated as 10 percent disabling from March 1995, 20 percent disabling from July 2004, and 10 percent disabling from March 2012; benign paroxysmal positional vertigo evaluated as 10 percent disabling from January 2013; hypertension evaluated as 10 percent disabling from January 2013; and, tinnitus evaluated as 10 percent disabling from September 2014. The Veteran's combined rating , as per 38 C.F.R. § 4.25, was 30 percent from March 1995, 50 percent from July 2004, 60 percent from September 2010, 50 percent from March 2012, 60 percent from January 2013, a temporary 100 percent from December 2014, and 80 percent from February 2016. Accordingly, the Veteran does not meet the percentage requirements for consideration of a TDIU on a schedular basis (38 C.F.R.§ 4.16(a)) for the period prior to February 1, 2016. However, VA regulations provide that if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of the Compensation Service for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b) (2020); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran's claim to the Under Secretary for Benefits or Director of the Compensation Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the TDIU claim. In the December 2020 remand, the Board referred the Veteran's claim to the Under Secretary for Benefits or Director of the Compensation Service for consideration of an extraschedular evaluation under 38 C.F.R. § 4.16 (b) for the time period from January 25, 2013 until December 9, 2014. In a January 2021 Administrative Review, the Director of the Compensation Service found that entitlement to individual unemployability benefits on an extraschedular basis from January 25, 2013 to December 9, 2014, was not established. To support the determination, the Director stated VA treatment records were reviewed and failed to show an exceptional or unusual pattern of treatment to include hospitalizations for the period in question that would show marked interference with employment caused by the service-connected disabilities. The Director further noted that records show the Veteran last worked for the United States Postal Service as a Custodian Laborer in August 2006. Ultimately, the Director found that none of the available evidence supports the Veteran's contention that any of the service-connected disabilities, or a combination of the effects of the service-connected disabilities, prevented all employment from January 25, 2013 to December 9, 2014. Although the Board may not in the first instance award TDIU pursuant to 38 C.F.R. § 4.16 (b), the Board is not bound by an adverse determination by the Director of the Compensation Service regarding extraschedular entitlement to TDIU. The Director's decision is in essence a decision by the AOJ and is no different than a RO's decision in terms of its effect on the Board's jurisdiction and standard of review. Wages v. McDonald, 27 Vet. App. 233 (2016). The Director's decision is not probative evidence. Accordingly, the Board must determine whether the evidence of record supports a finding that the Veteran is entitled to a TDIU. The remaining question before the Board is whether the evidence shows that the Veteran's service-connected disabilities prevented him from obtaining and sustaining substantially gainful employment prior to February 1, 2016. In this regard, the Board has considered the Veteran's educational and employment background. The Veteran has completed high school and one year of college. See VA Form 21-8940. The Veteran has also reported losing his employment with the U.S. Postal Service in September 2006 and that he became too disabled to work in November 2010. See October 2012 Statement in Support of Claim; see also October 2020 Appellate Brief. The Veteran was afforded a VA examination in February 2011 for his left knee with degenerative arthritis. The VA examiner reported that the Veteran's left knee disability affects daily activities of doing chores, shopping, and exercise. The VA examiner further described the effect of the Veteran's left knee condition on his usual occupation as limiting mobility. The Veteran was afforded a VA examination in February 2011 for his degenerative disc disease of the lumbar spine. The VA examiner reported that the Veteran's spine disability affects daily activities of doing chores, shopping, and exercise. A July 2012 VA treatment record shows the Veteran's statement that he would like a VA job and that he hasn't worked since 2006. He further reported that he was employed by the U.S. Postal Service since 1998 and sought a release to return to work following a work-related injury to his right wrist. The VA social worker reported that the Veteran was vague as to what led him to give up his livelihood and relocate to Hawaii. The Veteran was afforded a VA examination in October 2012 for his right carpal tunnel syndrome. The VA examiner reported that the Veteran's carpal tunnel impacts his ability to work, causing weakness and pain in the right hand. The Veteran was afforded a VA examination in September 2013 for his hypertension. The VA examiner reported that the Veteran's hypertension has no impact on his ability to work. An October 2013 VA treatment record shows the Veteran's report that he walks on the treadmill for two hours three times week, uses an exercise bicycle three times a week, and weight lifts daily. The Veteran was afforded a VA examination in December 2013 for his hypertension. The VA examiner reported that the Veteran's hypertension impacts his ability to work, causing fatigue. A January 2014 VA treatment record shows the Veteran's report that he goes to the gym almost every day of the week, except holidays, and stays for about four hours. The Veteran further reported that he lifts weights and does cardio. A March 2014 VA treatment record shows that the Veteran reported his left knee pain increasing in severity and that he previously had steroid injections that he would like to receive again. The Veteran denied having severe pain at the time. After a review of the record, the Board finds that the evidence does not support a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation prior to February 1, 2016. There is no evidence that the VA examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the functional impact of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). (Continued on the next page) The Board acknowledges that the Veteran is competent to report observable symptoms of his service-connected disabilities. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran has reported that his right carpal tunnel syndrome makes it difficult for him to grab, lift, screw/unscrew, move objects, and more. The Veteran has also reported left knee pain. However, to the extent that the Veteran has asserted that he is precluded from securing or following a substantially gainful occupation due to his service-connected disabilities, such statements are less probative than the objective evidence of record, including the VA examinations and treatment records discussed above. As such, while there is some documented functional impact due to his service-connected disabilities, the probative evidence does not document that such conditions do not preclude the Veteran from securing or following a substantially gainful occupation due to his service-connected disabilities. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran himself has reported walking extensively on the treadmill and lifting weights. See October 2013 and January 2014 VA Treatment Records. The Veteran has also expressed interest in working at the VA after the date he reported becoming too disabled to work. See July 2012 VA Treatment Record; see also October 2020 Appellate Brief. Furthermore, no VA examiner has reported that the Veteran's service-connected disabilities preclude employment. See February 2011, October 2012, September 2013, and December 2013 VA Examination Reports. Finally, the Veteran reported that he stopped working 2006 at the U.S. Postal Service due to a work-related right wrist injury. See July 2012 VA Treatment Record. In conclusion, the Board finds that the preponderance of the evidence of record does not show that the Veteran is precluded from securing or following a substantially gainful occupation as a result of his service-connected disabilities in order to warrant TDIU on an extraschedular basis prior to February 1, 2016. As such, there is no reasonable doubt to be resolved and the claim must be denied. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2020); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. C. Slaughter, 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.