Citation Nr: 21040369 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 07-08 070 DATE: July 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 18, 2010, including on an extra-schedular basis, is denied. REMANDED Entitlement to a rating in excess of 10 percent for chondromalacia of the left knee is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) or on account of being housebound (HB) is remanded. FINDING OF FACT Prior to June 18, 2010, the Veteran's service-connected disabilities did not meet the schedular rating requirements for a TDIU and did not render him unemployable to warrant consideration of entitlement to this benefit alternatively on an extra-schedular basis. CONCLUSION OF LAW Prior to June 18, 2010, the criteria are not met for entitlement to a TDIU including on an extra-schedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to April 1985. This appeal to the Board of Veterans' Appeals (Board) originated from an April 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2010, in support of this appeal, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. However, during the pendency of this appeal, that presiding VLJ retired, so the Veteran was notified in a May 2021 letter that he could have another hearing before a different VLJ who, in turn, ultimately would decide this appeal. 38 C.F.R. § 20.207. However, the Veteran did not respond to this letter within the allotted time to request another hearing. Meanwhile, in August 2010 and December 2015, the claims for a higher rating for the left knee disability and a TDIU on an extra-schedular basis prior to June 18, 2010 were remanded back to the RO for further development and consideration. The claim of entitlement to SMC based on the need for regular A&A or on account of being HB was denied in an October 2017 rating decision since issued. According to the holding in Akles v. Derwinski, 1 Vet. App. 118 (1991), the issue of entitlement to SMC is part and parcel of a claim for increased rating. Akles supports the inference that, as long as an increased rating claim remains pending, the SMC issue also remains pending. Thus, although the Veteran did not submit a Notice of Disagreement (NOD) with the October 2017 rating decision, entitlement to SMC based on the need for regular A&A or on account of being HB still must be considered in this appeal in conjunction with the claim for an increased rating for his left knee disability. Most recently, all three claims on appeal were before the Board in November 2019 and remanded back to the RO for further development, including for new VA examinations and to refer the matter of entitlement to a TDIU on an extra-schedular basis prior to June 18, 2010 to the Director of the Compensation Service. The remand instructions concerning entitlement to SMC and an extra-schedular TDIU since have been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Unfortunately, though, there has not been substantial compliance with the November 2019 remand directive concerning the Veteran's claim for a higher rating for his left knee disability and, as such, this claim again must be remanded along with the SMC claim that is inextricably intertwined. Entitlement to a TDIU on an extra-schedular basis prior to June 18, 2010 The Veteran asserts that his service-connected disabilities rendered him unemployable even prior to June 18, 2010 (the effective date of his TDIU) and, therefore, he is entitled to this benefit as of an earlier effective date. A TDIU may be assigned when a Veteran is unable to obtain or maintain a substantially gainful occupation as a result of service-connected disability(ies). If there is only one service-connected disability, this disability must be rated at 60 percent or more; if there are two or more disabilities, at least one must be rated at 40 percent or more with sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or affecting both upper extremities or both lower extremities or a singly bodily system are treated as one, collective, disability. 38 C.F.R. § 4.16(a). But even if a Veteran does not meet these threshold minimum rating requirements, a TDIU still may be granted albeit, instead, on an extra-schedular basis under the alternative special provisions of § 4.16(b) if it is shown he is unemployable because of service-connected disability(ies). For this period at issue prior to June 18, 2010, the Veteran was in receipt of service connection for lumbosacral strain with intervertebral disc syndrome (IVDS), rated as 40 percent disabling; left knee chondromalacia and radiculopathy of the left lower extremity, each rated as 10-percent disabling; and erectile dysfunction (ED) and bowel dysfunction, each rated as 0-percent disabling, so noncompensable. His combined rating was 50 percent, so he does not have sufficient ratings for these service-connected disabilities to meet the § 4.16(a) schedular criteria for a TDIU for this period. Consequently, this TDIU claim may be considered only instead under § 4.16(b). To reiterate, according to § 4.16(b), it is the established policy of VA that all Veterans who are individually unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled, even if they do not meet the § 4.16(a) rating requirements. 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. A Veteran need not establish "100 percent unemployability" to prove an inability to maintain a "substantially gainful occupation"; the use of the word "substantially" suggests an intent to impart flexibility into a determination of the Veteran's overall employability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). 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). In November 2019, the Board directed referral of this claim to the Director of the Compensation Service for consideration of entitlement to this benefit on an extra-schedular basis pursuant to the special provisions of § 4.16(b). But, in response, the Director rendered a January 2021 advisory opinion concluding that entitlement to a TDIU on an extra-schedular basis prior to June 18, 2010 is not warranted. In explanation, the Director concluded that "the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disability prevents employment." The Director further stated that, while the Veteran's disabilities did cause functional limitation for this period, the preponderance of the evidence does not show that he was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. More specifically, the medical evidence of record shows that he was advised to avoid running, jumping, prolonged walking, heavy lifting, carrying and frequent kneeling, and bending. However, the Director's opinion is not a final determination on the matter. Rather, the Board must review all the evidence in rendering a final determination regarding whether the Veteran is entitled to an extra-schedular rating. As the issue of extra-schedular consideration for a TDIU prior to June 18, 2010 was adjudicated in the first instance by the Director in January 2021, the Board is now free to review this matter de novo. Floyd v. Brown, 9 Vet. App. 94 (1996). There is no restriction on the Board's ability to review the adjudication of an extra-schedular rating once the Director determines that an extra-schedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). See also Wages v. McDonald, 27 Vet. App. 233, 239 (2015) ("[T]he Director's decision is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence". The Board conducts a de novo review of the Director's decision.). On March 14, 2019, so during the pendency of this appeal, the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) also issued Ray v. Wilkie, 31 Vet. App. 58 (2019) which, in part, addressed the effect of the Board's referral of a case for extra-schedular consideration when the Board later reviews the Director's decision not to award an extra-schedular rating. The Court held that the Board's determination to refer a case for extra-schedular consideration is a factual finding that does not bind the Board or require the Board to award an extra-schedular rating; however, if the Board denies the claim after referral, the Board "must provide adequate reasons or bases for deviating from its earlier referral decision." Even more recently, on May 28, 2020, the Court issued Smiddy v. Wilkie, 32 Vet. App. 350 (2020). In Smiddy, the Court extended its holding in Ray regarding the initial decision of whether to refer the issue of an extra-schedular TDIU under 38 C.F.R. § 4.16(b) to the Director of the Compensation Service to the initial decision of whether to refer the issue of an extra-schedular rating decision under 38 C.F.R. § 3.321(b)(1) to the Director. In other words, when the Board denies entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b), it must provide adequate reasons and bases for any factual determination that deviates from its earlier decision to remand the claim for referral to the Director of Compensation Service. Here, however, the November 2019 Board remand did not make factual findings when referring this appeal to the Director; rather, the November 2019 remand noted that the remand and referral to the Director of the Compensation Service due to non-compliance with the earlier December 2015 remand. That earlier December 2015 remand similarly made no factual findings concerning the Veteran's claim for an extra-schedular TDIU, only that this claim for this earlier period arose under Rice v. Shinseki, 22 Vet. App. 447 (2009). In Ray, the Court also explained that the term "substantially gainful employment" contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The Court also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Turning now to the relevant evidence in this case at hand, the Veteran has stated that he believes his service-connected disabilities, including especially those affecting his back and left knee, precluded him from obtaining and maintaining substantially gainful employment even before June 18, 2010. One point worth noting in this regard is that, although service connection also has been granted for major depressive disorder with substance and alcohol abuse in remission, this did not become an established service connected disability until June 18, 2010, so the fact that it is rated as 70-percent disabling is inconsequential because this disability cannot factor into the TDIU determination for the period at issue, i.e., prior to June 18, 2010. Medical evidence from as early as June 2004 shows the Veteran was limited in his bending, lifting, standing, and walking due to his service-connected lumbar strain and left knee chondromalacia. But an April 2005 VA treatment record shows the Veteran was employed by VA, so working. Other evidence in the claims file shows the Veteran intermittently participated in VA's Veteran Readiness and Employment program (VR&E, formerly referred to as Veteran's Vocational Rehabilitation and Employment) through October 2005, when he stopped participating but of his own volition. A February 2006 VA treatment record shows the Veteran was unemployed but was "utilizing vocational rehabilitation services." Effectively since May 2006, the Veteran has been receiving disability benefits from the Social Security Administration (SSA) because of his back disability. He had stopped working about one year earlier, in May 2005 or thereabouts. In January 2007, the Veteran submitted a December 2006 private opinion. In this private opinion, the doctor stated that the functional impact from the Veteran's knee was that he had difficulty standing and walking and going up and down stairs. Further, he stated that the Veteran's left knee precluded him from kneeling, squatting, running, or jumping. Concerning the Veteran's back, the doctor stated that the Veteran's functional impact was that the Veteran cannot bend or lift, and it was difficult to move. However, at the start of the examination report, the doctor noted this assessment was based solely on the Veteran's statements to the doctor; there is no indication the doctor reviewed any of the Veteran's medical file. In August 2007 the Veteran underwent a VA examination for his left knee and his back. At this examination, he stated that his left knee limited his ability to stand and walk. However, upon examination, he had full range of motion in his left knee, with pain starting at 130 degrees, where a full range of motion is to 140 degrees. See 38 C.F.R. § 4.71, Plate II. So, even when considering his pain, he still had nearly normal range of motion of this knee; thus, there was little, if any, actual functional loss owing to the pain. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). He said his back disability limited his ability to stand, walk, bend, and lift or carry heavy things. However, the examiner's objective examination found no radiating pain on movement of the thoracolumbar spine, and the Veteran's range of motion was only limited in flexion, where he had flexion to 80 degrees out of a full flexion of 90 degrees, and pain starting at 75 degrees. Thus, there also was just relatively limited functional impact of his pain on the range of motion of his thoracolumbar spine. The examiner's overall opinion was that the Veteran's service-connected disabilities affect his daily activity because he should avoid jumping, running, prolonged walking, heavy lifting and carrying and frequent kneeling or bending. A January 2009 VA Report of Hospitalization shows the Veteran was hospitalized for narcotics withdrawal. A December 2009 VA treatment record shows the Veteran had long standing prescriptions for morphine, Percocet, and valium for his chronic pain from his spine and left knee disabilities. This December 2009 record shows that he reported taking these prescriptions "occasionally" more than prescribed. A separate December 2009 VA treatment record shows he was being treated for opiate addiction. In January 2010, a VA doctor, Dr. A.B., provided a letter stating that the Veteran is on a "significant amount of strong acting narcotic and psychotropic medications" to manage chronic pain owing to his service-connected back and left knee disabilities. Dr. A.B. further stated that, "[u]se of these medications is the only way to alleviate [the Veteran's] chronic pain; unavoidably, their use results in serious side effects such as delusions, hallucinations, confusion and irritability." Of note, Dr. A.B. stated that the Veteran "adheres to his treating physicians' recommendations including the mediation regimen taking his medications as prescribed." Finally, Dr. A.B. stated that "constant presence of the side effects contributes to further deterioration of [the Veteran's] ability to organize his life and family affairs." The Board notes, though, that this is based on the premise that the Veteran took his medications for his back and left knee as prescribed, which is in direct contradiction with earlier VA treatment records showing he conversely did not take the medications as prescribed. During his January 2010 hearing before this Board, the Veteran testified that his prescriptions for his back and left knee cause hallucinations, drowsiness, and violent tendencies. He described this as feeling "inebriated" by his medications. He further reported that he had last worked as a records clerk in 2005, and that he was let go from employment because he could not complete the job duties of bending, stooping, and heavy lifting due to his back and knee disabilities. He then stated that he had started collecting SSA disability benefits. A February 2010 VA treatment record shows the Veteran was unable to then work because he was in an in-patient rehabilitation program, but that he was going to explore retraining and education options through VA. In March 2010, the Veteran underwent a VA examination for his left knee and his back. At this examination, the examiner stated that the effect of the Veteran's condition on his usual occupation was that he was disabled, and that he needs assistance with the basic activities of daily living. The Veteran reported that his knee caused him to be unable to sit, stand, walk, or climb for prolonged periods of time and that he uses a walker. He reported that his back causes decreased activities. There is no disputing the Veteran's service-connected disabilities, including especially those affecting his back and left knee and the medications prescribed for them, caused some functional impact on his ability to maintain substantially gainful employment performing physical labor prior to June 18, 2010. But, also significantly, his service-connected disabilities did not alone preclude him from obtaining and maintaining other employment that could be considered substantially gainful versus just marginal in comparison. To reiterate, service connection had not been established for his major depressive disorder with substance and alcohol abuse in remission until June 18, 2010. Thus, the impact of his non-compliance taking his prescribed medications for his back and left knee disabilities cannot be attributed to any service-connected disability prior to June 18, 2010, and therefore, cannot be considered in this extra-schedular TDIU determination. Further, the Board finds that, while the Veteran's service-connected disabilities prior to June 18, 2010 did have some physical impact on his ability to work, they did not preclude all types of working in a substantially gainful capacity, including jobs where he would have been free to sit and stand at will to accommodate his left knee and back pain, such as working as a store greeter, salesperson, or working at a help desk, or other jobs that do not require bending, squatting, lifting heavy objects, kneeling, or jumping. Consequently, after reviewing the evidence, the Board agrees with the Director that entitlement to a TDIU on an extra-schedular basis prior to June 18, 2010 is not warranted. REASONS FOR REMAND 1. Entitlement to a rating higher than 10 percent for chondromalacia of the left knee is remanded. In the prior November 2019 remand, the remand directive stated that the Veteran was to undergo a new VA knee examination, and that the examiner "should assess the additional functional impairment [of the left knee] in terms of the degree of additional range-of-motion loss, if possible. If the Veteran is not being observed after repetitive use or during a flare-up, the examiner must still estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran's description of his flares' severity, frequency, duration, and/or functional loss manifestations." This mandate was to comport with the precedent holdings in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). To this end, the Veteran underwent this VA knee examination in November 2020. However, a review of the examination report reveals the examiner asked the Veteran about flare-ups and the Veteran indicated in response that they are severe, happen "basically all the time," are precipitated by walking and sleeping on his left side, and are alleviated by getting off of his feet. He did not report having any functional loss or functional impairment of his left knee, including during repeated or prolonged use of this knee over time. The examiner then conceded the examination was not being conducted during a flare-up, but that it was medically consistent with the Veteran's reports. However, the examiner failed to give any indication of any additional loss in range of motion during flare-ups as estimated by the Veteran or state that there is no additional loss in range of motion during flare-ups. This failing is in direct contravention of the holdings in Sharp and, as an additional loss in range of motion during a flare-up may support a higher rating for the Veteran's left knee disability, and since the November 2019 remand specifically requested an indication of any additional loss in range of motion during a flare-up, the Board finds that another remand of this claim is required for further medical comment. See Stegall, 11 Vet. App. at 271. 2. Entitlement to SMC based on the need for regular A&A or on account of being HB is remanded. The prior November 2019 Board remand found that the Veteran's claim of entitlement to SMC based on the purported need for regular A&A or on account of being HB inextricably intertwined with his claim for an increased rating for his left knee disability. This finding was based on his January 2010 hearing testimony during which he had alleged that his left knee disability, in addition to his low back disability, render him in need of regular A&A. As the November 2019 remand found that the development of the Veteran's left knee claim may impact his claim for SMC, the Board is again remanding his claim for SMC since still inextricably intertwined with his claim for a rating higher than 10 percent for his left knee chondromalacia, even accepting that the RO already has adjudicated this derivative SMC claim and that decision was not separately appealed. The Board has explained why this claim did not have to be separately appealed. Accordingly, these claims are REMANDED for the following action: 1. If there are outstanding records concerning these remaining claims, obtain them and appropriately notify the Veteran if unable to obtain any additional records that he identifies with the required amount of information. 38 C.F.R. § 3.159(c) and (e). 2. After obtaining all additional treatment or other relevant records, schedule the Veteran for another examination by an appropriate clinician again reassessing the severity of his service-connected left knee disability. The examiner should provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria. To this end, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and comment on the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training), or whatever reason precludes responding. Further, the examiner is asked to document if there is no additional loss in range of motion during flare-ups. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.