Citation Nr: 21032174 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 21-00 130 DATE: May 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) for the period on appeal prior to November 1, 2018 (excluding the period of a temporary total rating from July 5, 2006, to September 1, 2007), on an extraschedular basis is granted. Entitlement to dependents educational assistance (DEA) benefits under 38 U.S.C. Chapter 35 for the period on appeal prior to November 1, 2018 (excluding the period of a temporary total rating from July 5, 2006, to September 1, 2007), is granted. FINDINGS OF FACT 1. For the appellate period prior to November 1, 2018, the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. 2. For the appellate period prior to November 1, 2018, the Veteran has met the requirements for DEA. CONCLUSIONS OF LAW 1. The criteria for a TDIU for the period on appeal prior to November 1, 2018 (excluding the period of a temporary total rating from July 5, 2006 to September 1, 2007), have been met on an extraschedular basis. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16(b). 2. For the appeal period prior to November 1, 2018 (excluding the period of a temporary total rating from July 5, 2006 to September 1, 2007), the criteria for a grant of DEA benefits are met. 38 U.S.C.A. §§ 3500, 3501, 3510; 38 C.F.R. § 21.3020. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to August 1967. This appeal has a long procedural history and originates from a December 2007 rating decision that, among other issues, denied entitlement to a TDIU. The issue of entitlement to a TDIU was previously before the Board of Veterans' Appeals (Board) in June 2011, November 2012, and November 2017 at which times the case was remanded for further development. In June 2018, the Agency of Original Jurisdiction (AOJ) granted the Veteran a TDIU, effective November 1, 2018, and granted the Veteran entitlement to DEA benefits effective the same date. The Veteran perfected an appeal of the June 2018 rating decision with respect to the assigned date of the awards. He asserts that he is entitled to TDIU and DEA benefits prior to November 1, 2018. The Board acknowledges that in a statement received by VA on May 19, 2021, the Veteran's attorney requested that he be afforded the full 90-day period allowed to submit additional evidence in support of the appeal once the case was returned to the Board's docket on May 5, 2021, before a decision is made in this appeal. However, as discussed in more detail below, the Board finds that the evidence currently of record is sufficient to grant the appeal in full. As such, there is no need to delay a decision in the appeal by the remainder of the 90-day period following the return of this appeal to the Board's docket on May 5, 2021. As the appeal is being granted in full, any due process error in failing to allow for the complete 90-day period to expire constitutes harmless error. TDIU Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must consider the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991. However, VA may not consider the individual veteran's age or any impairment caused by nonservice-connected disabilities in determining whether TDIU is warranted. See 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability 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). Where these criteria are not met, but the Veteran is nevertheless unemployable by reason of service-connected disabilities, entitlement to a TDIU may still be warranted. See 38 C.F.R. § 4.16(b). In the recent decision of Ray v. Wilkie, the Court provided principles to guide VA adjudicators in determining whether a veteran could obtain and maintain "substantially gainful employment." 31 Vet. App. 58, 72 (2019). First, the Court noted that "substantially gainful employment" included an economic component, i.e., an occupation earning more than marginal income as determined by the United Stated Department of Commerce as the poverty threshold for one person as well as a non-economic component, i.e., a veteran's ability to secure or follow that type of occupation which produces earnings more than the Federal poverty threshold. Id. at 72-73 (citations and internal quotation marks omitted). In making such a determination, particular attention must be given to: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, including whether the veteran has limitations concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, including whether the veteran has limitations concerning memory, concentration, the ability to adapt to change, the ability to handle work place stress, the ability to get along with coworkers, and the ability to demonstrate reliability and productivity. Id. At the outset, the Board notes that prior to November 1, 2018, and excluding the period from July 5, 2006 to September 1, 2007 when he was in receipt of a temporary total rating after undergoing revision, left total knee arthroplasty, the Veteran did not meet the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). Rather, for the period from September 1, 2007 to November 1, 2018, he was service-connected for status post left knee arthroplasty, with revision arthroplasty, rated 30 percent disabling; carpal tunnel syndrome, left upper extremity, rated 20 percent disabling; right knee degenerative joint disease associated with status post left knee arthroplasty, with revision arthroplasty, rated 10 percent disabling; and right knee degenerative joint disease instability, associated with stats post left total knee arthroplasty, with revision arthroplasty, rated 10 percent disabling. His combined rating was 50 percent. As such, his entitlement to a TDIU for this period must be evaluated on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15Vet. App.1, 10 (2001). In February 2017, the AOJ obtained an opinion from the Director of Compensation and Pension. The Director concluded that entitlement to TDIU was not shown due exclusively to the Veteran's service-connected disabilities. The Board conducts de novo review of the Director's decision denying extraschedular consideration under 38C.F.R. §4.16(b) and the Director's decision is in essence the decision of the AOJ and not evidence. Wages v. McDonald, 27Vet. App.233, 238-39 (2015) ("[T]he Director's decision [pursuant to 38C.F.R. §4.16(b) is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence"). The facts show that the Veteran last worked in July 2006 which is when he underwent revision for failed total left knee arthroplasty. VA medical records prior to July 2006 include an October 2005 record containing the Veteran's report that he worked 60 hours a week as an apartment maintenance manager and that he was responsible for 150 units and that he had a lot of work to do. Employment information from his former employer was received in May 2009 showing that he had worked as a maintenance supervisor from January 2004 to November 2006 before resigning. It also shows that he lost four months during his last 12 months due to disability and the last day he worked was in July 2006. Regarding the Veteran's education, the record reflects that he obtained his high school diploma and has two years of college education. In support of his claim that he is entitled to a TDIU prior to November 1, 2018, the Veteran said that he lost his job in "November" because he was no longer given a medical excuse and he had no choice but to file for disability benefits with the Social Security Administration (SSA). He said that there was no way that he was able to work at that time due to the severity of pain that he was experiencing as well as the effects of his pain medication. He pointed out that he had had six surgeries on his left knee in addition to surgery on his right knee due to overcompensating for the left knee. He added that he had low back pain which he attributed to his knee disability, but which he is not service connected for. The Veteran's spouse submitted a letter in March 2007 similarly attesting to the constant pain that he was in. She said that he was not able to do things that he used to be able to do such as go for a walk around the block, ride a bike, work around the house, paint, or fix things. SSA records show that the Veteran was awarded disability benefits effective in July 2006 due to a primary diagnosis of back disorders and a secondary diagnosis of osteoarthrosis and allied disorders related to his left knee. The central inquiry for the Board is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability" for the period prior to November 1, 2018. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Evidence pertinent to this question includes a VA primary care progress note in February 2007 showing that the Veteran had not been able to work since undergoing knee surgery in July 2006. It also shows that he requested a letter stating that he could not ever return to work. VA informed him at that time that he could have a work restriction letter, but that he would have to undergo a Functional Capacity test at his expense to determine if he was unable to ever return to work. He was noted at that time to be receiving a temporary 100 percent disability rating from VA and that "he just did not want to return to work". A July 2007 VA psychiatric note shows that the Veteran was distressed by physical limitations caused by knee pain. In August 2007, the Veteran was examined by VA for his bilateral knee condition. The examiner reported that x-rays seemed to confirm osteoarthritis and that the Veteran seemed to have worsening condition of his knees. He said that this would affect his employability, "but not totally disabled". He added that "with the necessary treatment [the] veteran should be employable but for now he would be limited in his employability." The Veteran reported in a January 2008 electronic mail that he would work if he could, but that due to "uncontrollable pain" he had a hard time taking care of his house on a small lot let alone working full time. He added that he had been a maintenance supervisor for years and had been restricted by VA from lifting over 10 pounds. An October 2008 VA outpatient treatment record shows that the Veteran reported that his left knee was doing well since undergoing left knee revision arthroplasty in 2006 and he had no complaints. He did report worsening right knee pain over the past two to three months which sometimes woke him up at night. He said that he was still able to perform activities of daily living, but he felt that his right knee pain was "slowing him down". X-rays of both knees revealed good positioning of the hardware. They also showed minimal joint space loss with some osteophytes in the right knee. There were no surgical indications at that time for the right knee. The Veteran was told to return to the clinic in one year for repeat x-rays or sooner if his right knee worsened. An October 2008 VA electromyography (EMG) report shows that the Veteran had been unemployed for almost three years due to back pain. He was assessed by VA as having chronic knee and back pain. An August 2011 VA orthopedic examiner similarly reported that the Veteran's left knee was doing well, but that his right knee pain had worsened over the years and was aggravated by standing more than 30 minutes and climbing a flight of stairs without stopping. He said that the Veteran took narcotic pain medication every six hours. X-rays revealed a well-functioning arthroplasty in the left knee and moderate osteoarthritic changes in the right knee. The Veteran was noted to have discomfort in the left knee. The examiner opined that these disabilities would affect the Veteran's ability to work, either to gain or maintain employment with a physically-exerting job, consistent with his skill set, but that he would be able to maintain sedentary position. VA outpatient records in 2012 reflect the Veteran's complaints of left knee pain. They also show that he had a ruptured left knee Baker's cyst in October 2012 that resolved. He was diagnosed in December 2012 as having "total knee sound and stable". His assessment as noted on an October 2013 primary care record includes left knee pain. A VA emergency department triage note in November 2013 shows that the Veteran was seen for right knee pain which he said was of sudden onset while walking with no injury. However, a November 2013 telephone note contains comments by a nurse that the Veteran fell and injured his right knee the day before. He was noted to be unable to walk on the leg. Findings included right knee swelling and weakness. In January 2016, the Veteran underwent a VA peripheral nerve examination for carpal tunnel syndrome. He reported symptoms in his left hand for several years of decreased grip strength and pain and he said that he had difficulty opening jars and he dropped things. The examiner opined that this condition impacted the Veteran's ability to work by causing difficulty in reaching, carrying, lifting, sensation, grip, and pain. At a January 2018 VA examination, the examiner relayed the Veteran's report that he could not sit for more than three to four minutes and he could not stand more than one to two minutes. He also relayed the Veteran's report that he avoided reaching, was unable to change a light bulb, could not walk more than 100 feet and he avoided stairs. The Veteran also said that he could not lift/carry more than 10 pounds and was unable to squat or kneel. The examiner noted that there was right and left medial and lateral joint instability in the knees. He reported that the Veteran's right knee disability functionally impacted his ability to perform any type of occupational task (such as standing, walking, lifting, sitting). The Board finds after considering the pertinent evidence as outlined above that the evidence is in a state of equipoise as to whether the Veteran's service-connected disabilities alone rendered him unable to secure or follow a substantially gainful occupation prior to November 1, 2018. On the one hand, there is evidence showing that his left knee was secure and stable following the revision surgery in July 2006 and that he had no complaints regarding this knee. On the other hand, there is evidence showing that he continued to experience left knee discomfort and pain as well as gradual worsening pain in his right knee due to osteoarthritic changes as shown by x-ray which "slowed him down". The August 2007 VA examiner's opinion that the Veteran "should be employable" but that he had "limited employability" at that time suggests that he was essentially not employable at that time. Notably, he was still in receipt of a temporary total disability rating at that time. Regarding the August 2011 VA examiner's opinion that the Veteran's knee disabilities would affect his ability to work, either to gain or maintain employment with a physically-exerting job, consistent with his skill set, but that he would be able to maintain sedentary position, this must be considered in the context of his education and work history. See Withers v. Wilkie, 30 Vet. App. 139 (2018). As noted, the Veteran worked as a maintenance manager/supervisor of an apartment building for the last decade of his work life. It is apparent that although this was a supervisory/managerial position, it required physical exertion. This is evident based on the Veteran's March 2007 statement that he was a maintenance man by trade and he had been required to use tools on a daily basis in the performance of his duties which involving fixing and replacing items such as garbage disposals, water heaters, furnaces, and air conditioners. Notably, the Veteran was not service connected for left carpal tunnel syndrome until May 2017 (with an effective date in January 2007). Thus, the examiner's August 2011 opinion did not take into consideration the impact of the Veteran's left carpal tunnel syndrome on his functional limitations for work. In regard to his service-connected left carpal tunnel syndrome, VA treatment records beginning in 2006 reflect the Veteran's complaints of numbness and tingling in his hands and wrists, and they show that he was found by EMG in 2007 to have left carpal tunnel syndrome. The Veteran reported in March 2007 that he was restricted to lifting no more than 10 pounds and that some of his work tools weighed more than 10 pounds, not to mention having to strain to tighten and loosen fittings or replace items. In January 2016, a VA examiner reported that for the past several years the Veteran's left-hand symptoms caused decreased grip strength and pain as well as difficulty opening jars. He also noted that the Veteran dropped things. He went on to opine that this condition impacted the Veteran's ability to work by causing difficulty in reaching, carrying, lifting, sensation, grip, and pain. In short, by resolving reasonable doubt in the Veteran's favor, the Board finds that his specific history and disability picture supports a finding that he was incapable of performing any form of gainful employment for the appellate period prior to November 1, 2018, due to his service-connected right and left knee disabilities and left carpal tunnel syndrome alone. 38 U.S.C. § 5107(b). Accordingly, entitlement to a TDIU for the period on appeal prior to November 1, 2018, that is, from September 1, 2007 to November 1, 2018, is granted. DEA For the purposes of educational assistance under 38 U.S.C.A. Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. See 38 U.S.C.A. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. See 38 U.S.C.A. § 5113. In this case, by virtue of the Board's award of TDIU benefits for the period prior to November 1, 2018, that is, from September 1, 2007 to November 1, 2018, and because the effective date for DEA benefits was directly related to a finding that the Veteran had a total disability that was permanent in nature by virtue of his TDIU rating, the Veteran is also entitled to the same effective date for eligibility for Chapter 35 benefits. To that extent also, the appeal is granted. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shawkey, Anne 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.