Citation Nr: 21031985 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-36 844 DATE: May 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT For the entire period on appeal, the Veteran's service-connected disabilities have not precluded him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria are not met for entitlement to TDIU on a schedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from December 1980 to January 2002. This appeal returns to the Board of Veterans' Appeals (Board) after a February 2019 Board decision remanding the issue of TDIU for further development. The Board finds that the Agency of Original Jurisdiction (AOJ) complied with each of the remand directives. These claims are based on a July 2016 AOJ initial rating decision granting service connection for both of Veteran's knees, post status arthroplasty. The initial ratings were appealed for an increased rating and TDIU was raised under Rice v. Shinseki during the pendency of the appeal. Id., 22 Vet. App. (2009). Therefore, the Board provides this decision on the merits under the legacy appeal framework. TDIU TDIU may be assigned when the schedular disability rating is less than total, provided the veteran meets the disability rating percentage threshold. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a), (b). If a veteran is service connected for only one disability, that disability must be rated at 60 percent disabling or more. 38 C.F.R. §§ 4.16 (a), 4.25. If a veteran is service-connected for two or more disabilities, at least one of the disabilities must be rated at 40 percent disabling or more and the additional service-connected disabilities must bring the combined disability rating to 70 percent or more. Id. As a disability rating in it of itself recognizes the impairment makes it difficult to obtain and keep employment, in order for a veteran to prevail on a claim of TDIU the record must reflect some factor that takes his case outside the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is insufficient for TDIU purposes. The evidence must show the veteran is incapable of performing the physical and/or mental acts required by employment by reason of his service-connected disabilities. In the context of TDIU, appropriate factors for consideration are the veteran's employment history, educational and vocational attainment and any other factors bearing on the issue. 38 C.F.R. § 4.16(a); see also Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). However, a veteran's age or the impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. VA will grant entitlement to a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). As a disability rating in and of itself recognizes that the impairment makes it difficult to obtain and keep employment, in order for a veteran to prevail on a claim of TDIU the record must reflect some factor that takes his case outside the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is insufficient for TDIU purposes. The evidence must show the veteran is incapable of performing the physical and/or mental acts required by employment by reason of his service-connected disabilities. In determining whether a Veteran is unemployable for VA compensation purposes, consideration may be given to his level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. "Substantially gainful employment" is employment "that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 4.16(a), 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also however may be held to exist on a facts-found basis, including but not limited to employment in a protected environment such as a family business or sheltered workshop even when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.18. The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities, alone, are of sufficient severity to produce unemployability. The test of individual unemployability is whether a veteran, as a result of his or her service-connected disabilities, alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his or her educational and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a). See also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating, itself, is recognition that the impairment makes it difficult to obtain or keep employment. 38 C.F.R. §§ 4.1, 4.15. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Entitlement to TDIU The Veteran contends he is in constant pain from his service-connected disabilities and that he cannot work in the field to which he was trained. See August 2020 Veteran's Brief. The Veteran's claim for a TDIU arose during the pendency of his claim for increased ratings for his service-connected bilateral knee disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009); May 2013 Veteran Supplemental Claim; August 2016 Notice of Disagreement. First, the Board determines that the Veteran meets the requirement for consideration of a TDIU under 38 C.F.R. § 4.16(a) based on his combined disability rating. The Veteran has been assigned a combined 100 percent disability rating since May 2, 2013, based on the combination of his service-connect residuals of right total knee replacement, residuals of left total knee replacement, degenerative disc disease (DDD) of the lumbar spine, cervical spine stenosis, radiculopathy of the right and left upper extremities, residuals of rhinoplasty, shooting pain in the right lower extremity, foraminal stenosis with shooting pain in the left lower extremity, hypertension, and scars status post bilateral total knee replacements. During this time, the Veteran's right knee was rated at 60 percent from May 2, 2013, to January 7, 2014, at 100 percent disabling from January 7, 2014 to February 28, 2015 on a temporary convalescent basis, and at a 60 percent rating from thereon. The Veteran's degenerative disc disease, lumbar spine with spinal stenosis, status post fusion is rated at 40 percent disabling since June 1, 2004. The Veteran's left knee is rated at 60 percent disabling from August 4, 2016 to present. As such, the Veteran has had a combined rating of at least 70 percent, with a single disability rated at 40 percent or greater, for the entire period on appeal. The AOJ provided the Veteran with sufficient notice regarding how to substantiate his claim for TDIU in a September 2019 correspondence. The AOJ sent notice of necessary documentation and invitation to submit additional evidence to the Veteran's updated new address. This correspondence listed the need for the Veteran to submit a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit. To date, the Veteran has not responded to the request for either of these forms that contain vital information necessary in determining the claim. As such, the Board must decide the claim based on the scant information of record. The record contains December 2019 medical opinions for each of the Veteran's service-connected disabilities with respect to TDIU claim. The examiner opined that the Veteran's hypertension, residuals of rhinoplasty, and scars, status post bilateral total knee replacement, impose no restriction on the Veteran's job activities. The examiner opined that the Veteran's other service-connected disabilities, residuals left and right total knee replacement, radiculopathy of the right and left upper extremities, degenerative disc disease of the lumbar spine, and cervical spine stenosis, would each cause functional impairment in a physically demanding work setting due to pain but would have no functional impairment in a sedentary job where frequent breaks were allowed. The evidence shows that the Veteran is education includes a Bachelor of Science in computer science. See August 2006 Report of School Attendance. As such, the Veteran is trained by education to work in a non-physically demanding, sedentary field, that can allow frequent breaks. The evidence of record shows that the Veteran was most recently employed full time as a program analyst, based on his self-report during a November 2013 VA knee examination. See November 2013 VA Examination. Based on his description of his employment, the Board finds that in the Veteran's case, he worked in a position that allowed him breaks and accommodated him for his disabilities. The Veteran's reported working from home when his knee conditions worsened resulting in limited mobility. See November 2013 VA Examination. As such, the Veteran was trained and educated to work in non-physically demanding work settings that did not require his physical presence at a given job location. During and since this time period, the evidence fails to show that the Veteran's service-connected cervical and lumbar spine disabilities and lower extremity radiculopathies have prevented him from engaging in employment consistent with his training and work experience. He has made no reports of, nor does the medical evidence indicate, any problems with sitting or sedentary type activities due to his other service-connected disabilities. Indeed, the Veteran has made no statements regarding the impact of his service-connected disabilities, other than his bilateral knees, on his employability. As such, the Board finds that the Veteran is not precluded from working as a program analyst in a non-physically demanding position that is related to his education, a Bachelor of Science in computer science, by his service-connected disabilities alone. By his own report, he has been able to work full time in the computer science field, even if accommodated by working from home, even after he underwent knee surgery, surgery which occurred prior to him filing the claim for a TDIU. See November 2013 and August 2016 VA Examinations. As such, the Board finds that the Veteran is not precluded from working in the field to which he is trained, to the contrary of his attorney's claim otherwise in August 2020. The Veteran has not provided any evidence showing that he is precluded from engaging in the same or similar work due to his service-connected disabilities. The only other employment information available from the record is in the Veteran's August 2016 Notice of Disagreement where he informed the Board that he was at that time unemployed. However, the Veteran did not state why he was unemployed, or that he was unemployed solely due to his service-connected disabilities. Unemployment alone is insufficient to qualify for TDIU. It must be solely due to his service-connected disabilities. The Board is unable to determine from the record why the Veteran became unemployed in August 2016. However, based on the Veteran's own statements at his November 2013 VA examination, he was able to work at his latest position even when his service-connected disabilities were at their worst. The Veteran has not provided, and the Board is unable to locate any evidence that shows otherwise. Nor is there any evidence that suggests that the Veteran is precluded from working solely due to his service-connected disabilities. The evidence of record is counter to the Veteran's claims that he is unable to work due to the pain of his service-connected disabilities. The Veteran stated that the same symptoms, especially for his knees, have persisted after his initial surgeries. See August 2016 VA Examination ("The current pain has been there since the knee replacements, I feel they have never really healed to what I expected. The pain seems to be the same to include instability issues"). The Veteran's latest knee surgery was in January 2014, and he was granted a temporary 100 percent rating through February 2015. However, medical treatment records indicate that the Veteran has been able to play golf which requires walking, and quick twisting motion of the ankles, knees, and back during swings. See June 2014 Treatment Record Note. He also reported engaging in 150 minutes of moderate intensity exercise per week and muscle strengthening activities two or more days per week. See June 2015 Treatment Record Note. As such, the Board finds that the Veteran was able to engage in physical demanding activities during and after his convalescent period for his right knee when all of his disabilities were at their highest ratings. Based on the Veteran's statements that his symptom have been constant after his first set of surgeries, the Board finds that this evidence applies to the Veteran's physical condition to date as the Veteran has not reported or provided any other evidence. In this regard, the Board acknowledges that on an August 2016 VA examination of the knee and lower leg conditions, the examiner noted the Veteran's functional impact of his bilateral total knee replacements. The functional impact of his knee disabilities included difficulty sitting for more than 15-20 minutes and frequently changing positions due to pain, going down stairs, walking down hills, prolonged walking/sitting, squatting, etc. At the time of the August 2016 examination, which appears to have taken place prior to the Veteran's report that he was unemployed on his August 2016 Notice of Disagreement, the Veteran indicated that he had pain in both knees when he got out of the car after the 40 minute drive from his home to his work. He stated that he could not sit at work for more than an hour before he needed to stand up due to soreness in his knees. He also reported problems with sitting for more than an hour, after which, when he stood, it took him a few minutes before he could move freely. While the August 2016 noted the Veteran's reported functional impairments, the examiner made no comment that such prevented the Veteran from engaging in any type of employment, to include sedentary employment. Indeed, by the Veteran's self-report, he was able to work at that time, albeit with the need for frequent breaks. He gave no indication of an inability to work, even with such an accommodation, due to his service-connected bilateral knee disabilities, nor does the evidence of record indicate otherwise. While the Veteran asserts he is unable to work due to his service-connected disabilities, the preponderance of the evidence does not support his claim. Again, the Board highlights that the Veteran has not identified or provided evidence to support his contention, despite being asked to do so. The Board emphasizes that the duty to assist a claimant is not a one-way street, and in this case the Veteran has offered assistance in the development of his claim. Wood v. Derwinski, 1 Vet. App. 406 (1991); 38 C.F.R. § 3.655. Unfortunately, the Veteran's bare assertions that a TDIU is warranted, without more, does not outweigh the preponderance of the evidence against the claim and is not sufficient upon which to grant the benefits sought. (Continued on the next page) Base on the preponderance of the evidence of record, the Board finds that the Veteran has failed to meet his responsibility to present and support a claim for benefits sought. See 38 U.S.C. § 5107(a). The benefit of the doubt rule does not apply here because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinsky, 1 Vet. App. 49 (199); 38 C.F.R. § 5107(b). Therefore, the claim is denied. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.