Citation Nr: 21032052 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-06 527A DATE: May 25, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities have not rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1985 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). While the RO did not address the issue of entitlement to a TDIU in that rating decision, it subsequently assumed jurisdiction of the issue as part and parcel of the Veteran's pending appeal in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). See Mar. 2018 Supplemental Statement of the Case. The matter dates back to an original claim filed in June 2010. 1. Entitlement to a TDIU In March 2017, the Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. He noted that he last worked full time in July 2013 and became too disabled to work in September 2013. The Veteran noted that his disabilities of the lower extremities (left and right knee surgery and reconstructive right foot surgery) prevent him from following any substantially gainful occupation. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system, will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16(a). The Veteran is service connected for status post left total knee arthroplasty associated with left foot hallux valgus (assigned a noncompensable rating from June 25, 2014, rated as 100 percent disabling from August 15, 2014 under 38 C.F.R. § 4.30, 10 percent disabling from October 1, 2014, 100 percent disabling from November 1, 2019, and 30 percent disabling from January 1, 2021); right knee status post meniscal debridement (rated as 10 percent disabling from June 25, 2014, 100 percent disabling from January 27, 2017 under 38 C.F.R. § 4.30, and 20 percent disabling from March 1, 2017); lumbar arthropathy associated with left foot hallux valgus (rated as 10 percent disabling from June 25, 2014 and 20 percent disabling from February 3, 2021); left hip limitation of extension with osteoarthritis, associated with left foot hallux valgus (rated as 10 percent disabling from June 25, 2014); right foot hallux valgus (rated as 10 percent disabling from June 29, 2010, 100 percent disabling from December 5, 2014 under 38 C.F.R. § 4.30, and 10 percent disabling from March 1, 2015); right hip limitation of extension with osteoarthritis (rated as 10 percent disabling from May 16, 2016); painful scar, residual of right knee surgery (rated as 10 percent disabling from May 17, 2017); bilateral pes planus (rated as 10 percent disabling from October 15, 2018); right knee limitation of flexion (rated as 10 percent disabling from March 15, 2021). The Veteran is also service-connected for the following disabilities, all of which has been assigned noncompensable ratings: left foot hallux valgus, residual scar of the right middle finger, scarring of the left foot, right foot surgical scarring, left hip limitation of flexion with osteoarthritis, right hip limitation of flexion with osteoarthritis, bilateral surgical scars of the knees, impairment of the left hip, and impairment of the right hip. The Board notes that the Veteran met the criteria for schedular TDIU beginning January 1, 2021. As of that date, his combined rating is 80 percent and three of his service-connected disabilities (status post left total knee arthroplasty, lumbar arthropathy, and left hip limitation of extension with osteoarthritis) all result from a common etiology (left foot hallux valgus status post bunionectomy surgery with K-wire fixation). Combined, these three disabilities reflect a rating of 40 percent disabling. Thus, as the Board finds that these three disabilities are "one disability" as contemplated by 38 C.F.R. § 4.16(a), and have a combined rating of 40 percent disabling, the criteria for schedular criteria are met as of January 1, 2021. As a preliminary matter, the Board notes that the Veteran was assigned disability ratings of 100 percent at certain points during the appeal period, as outlined above. However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s), including whether the award of TDIU would provide entitlement to SMC. See AB v. Brown, 6 Vet. App. 35 (1993); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (Entitlement to SMC is an "inferred issue" in the context of an increased rating claim); see Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). SMC may be warranted pursuant to 38 U.S.C. § 1114(s) if a Veteran has a service-connected disability rated as 100 percent disabling and (1) has an additional service-connected disability or disabilities independently rated at 60 percent or more, or (2) by reason of such service-connected disability or disabilities is permanently housebound. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350(i). However, the Board finds that further analysis of entitlement to SMC at the housebound rate is not warranted. The Board notes that, for the period from November 1, 2019, to January 1, 2021, entitlement to SMC at the housebound rate has been awarded. TDIU is therefore moot for this period. During the remaining periods in which the Veteran was granted a 100 percent rating for single disabilities throughout the appeal period (which include from August 15, 2014 to September 30, 2014, December 5, 2014, to February 28, 2015, and from January 27, 2017 to February 28, 2017) he did not have additional service-connected disabilities independently rated at 60 percent or more. Further, there is no evidence of record indicating that the Veteran is permanently housebound, nor has the Veteran contended that he is permanently housebound. Accordingly, entitlement to a TDIU is also moot for these periods. As to the periods in which a schedular criteria were not met, the Board acknowledges that it may not assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001). Where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure and follow a substantially gainful occupation and there is no affirmative evidence to the contrary, the Board is required to remand the claim for referral to the Director of Compensation Service to consider entitlement on an extraschedular basis. Id. Therefore, a decision as to whether the Veteran was unable to secure and maintain employment is still warranted. However, as explained below, the Board finds that there is insufficient evidence supporting a finding of TDIU that would warrant referral of the Veteran's claim for the period prior to January 1, 2021, and that entitlement to a TDIU on a schedular basis from January 1, 2021 is also not warranted. As noted above, the Veteran reported that he was last able to work in 2013. In a December 2019 statement, the Veteran reported that he had held previous positions as an environmental service manager, in a communications department and in customer support, and as a public relations coordinator. His last position was as an environmental services representative. His application for TDIU reflects that he completed high school and one year of college. Turning to the evidence, in an August 2011 VA examination, the examiner noted that the Veteran's foot, hand, thumb, and finger conditions did not impact his ability to work. See Aug. 2011 VA Examination, pp. 9, 20. In August 2014, another VA examiner noted that the Veteran's foot condition did not impact his ability to perform any type of occupational task. See Aug. 2014 VA Examination, p. 10. In an October 2014 VA hip examination, the examiner noted that the Veteran's hip conditions did impact his ability to work. See Oct. 2014 C&P Examination, p. 15. The examiner stated that the Veteran would be unable to work as a commercial cleaning contractor or a security contractor due to his knee, hip, and back pain. Id. In March 2015, a VA examiner noted that the Veteran's post-operative right foot condition would likely prevent prolonged weight bearing activity at that point, but should not interfere with his ability to perform sedentary work and should continue to improve over time. See Mar. 2015 C&P Examination, p. 7. In an August 2017 VA addendum opinion, the examiner noted that the Veteran experiences pain with work activities that involve prolonged sitting, standing, walking, kneeling, and squatting. See August 2017 C&P Examination, p. 18. In an April 2018 VA knee and lower leg examination, the examiner noted that the Veteran would be limited regarding walking and standing in performing occupational tasks and that he last worked in 2013 in environmental services. See Apr. 2018 C&P Examination, p. 10. The examiner further stated that the Veteran remained capable of a "more sedentary position," but did not provide additional detail regarding what constituted sedentary work. In October 2018, the Veteran underwent multiple VA examinations for his service-connected disabilities. In his leg and knee examination, the examiner noted that the Veteran's conditions did not impact his ability to perform any type of occupational task. See Oct. 2018 C&P Examination #1, p. 13. The examiner made the same conclusions on the Veteran's back and hip examinations. See Oct. 2018 C&P Examination #2, p. 14; Oct. 2018 C&P Examination #3, p. 10. However, regarding the Veteran's foot condition, the examiner noted an impact on the ability to perform occupational tasks and stated that the Veteran experiences difficulty with walking and standing for long periods. See Oct. 2018 C&P Examination #4, p. 13. In February 2021, the Veteran underwent more VA examinations. The examiner noted that the Veteran's hip conditions impact his ability to perform occupational tasks, as the Veteran is limited in standing, walking, and bending. See Feb. 2021 C&P Examination #1, p. 17. Regarding the Veteran's back examination, the examiner also noted that occupational tasks would be impacted due to limitation in walking, standing, lifting, and bending. See Feb. 2021 C&P Examination #2, p. 14. Regarding the Veteran's foot examination, the examiner also stated that occupational tasks would be impacted due to limitation in walking and standing for long periods of time. See Feb. 2021 C&P Examination #3, p. 12. The examiner stated that the Veteran's scars did not impact his ability to work. See Feb. 2021 C&P Examination #4, p. 11. In February 2021, the examiner also provided a general statement regarding the Veteran's ability to work. The examiner stated that with adequate breaks, the Veteran would be able to function in a sedentary occupational environment, such as at a desk or on a stool or chair. He further noted that the Veteran's service-connected disabilities would limit the Veteran in bending, lifting, standing for long periods, walking long distances, or climbing. However, the Veteran would not be limited in tasks of grasping, typing, or reaching. In a March 2021 VA knee and lower leg examination, the examiner noted that the Veteran's occupational tasks would be impacted due to limitation in standing, walking, and climbing. See Mar. 2021 C&P Examination. In March 2021, the examiner provided another statement regarding the Veteran's employability. He stated that with accommodations, the Veteran can safely function in an occupational environment. He noted that the Veteran drove himself to the appointment that day and that he would be limited in full bending, climbing, and lifting heavy objects. The examiner further stated that the Veteran is able to use his arms while seated, making him able to work in an occupation such as a greeter, front desk administration, telephone worker, driver, clerk, or inspector. The Board finds that the weight of the evidence preponderates against the Veteran's claim for entitlement to a TDIU. The Board finds particularly probative the several VA examinations of record that address the impact that his service-connected disabilities would have on performance of occupational tasks. The evidence does show that the Veteran would likely have difficulty in maintaining an occupation that would require significant physical exertion, such as prolonged sitting, standing, walking, kneeling, bending, and squatting. However, none of the evidence of record supports a conclusion that the Veteran is completely precluded from securing and following any kind of gainful employment that is inconsistent with his educational and occupational background, which includes a variety of types of employment, including in public relations and customer service, with different employers. Both the February and March 2021 statements by VA examiners provide comprehensive statements regarding the Veteran's employability. They are also consistent with prior VA examinations of record indicating that the Veteran would have difficulty performing occupational tasks that required significant physical exertion. However, both the February and March 2021 statements find that the Veteran would be capable of employment that does not involve such exertion. The Board has considered the Veteran's statement that his service-connected lower extremities prevent him from following any substantially gainful occupation and that he became too disabled to work in 2013. However, the Board finds that the particularly probative VA examinations and occupational statements of record outweigh these statements. In sum, the Board finds that the Veteran is not unable to secure or follow a substantially gainful occupation consisted with his background as a result of service-connected disabilities. Accordingly, the Board finds that entitlement to a TDIU is not warranted and that referral to the Director of Compensation Service for the period prior to January 1, 2021 is also not warranted. G. E. Wilkerson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.