Citation Nr: 22069918 Decision Date: 12/18/22 Archive Date: 12/18/22 DOCKET NO. 13-05 132 DATE: December 18, 2022 ORDER A total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to August 13, 2010, is denied. FINDING OF FACT The competent and probative evidence weighs against a finding that the Veteran's service-connected disabilities are of such nature and severity as to preclude the Veteran from securing or following substantially gainful employment for the period prior to August 13, 2010. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis prior to August 13, 2010, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1982 to December 1982, September 1990 to May 1991, and from February 2003 to October 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has a long procedural history and has been before the Board previously. In November 2015, the Board remanded the issues on appeal for additional development. The remand directed the agency of original jurisdiction (AOJ) to obtain updated treatment records and to schedule a VA psychiatric examination. Additionally, the remand directed the AOJ to develop the Veteran's TDIU claim. In January 2021, the Board denied an increased rating in excess of 70 percent for the Veteran's adjustment disorder. Further, the Board granted entitlement to a TDIU from April 25, 2011, the date the Veteran met the schedular criteria for a TDIU. Thereafter, the Veteran appealed to the United States Court of Appeals for Veteran's Claims (Court). In an October 2021 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board erred when it did not consider whether an effective date earlier than April 25, 2011, was warranted for the grant of a rating of 70 percent for an adjustment disorder and a TDIU. Therefore, a remand is warranted for the Board to address the evidence and determine whether the 70 percent increase in the Veteran's an adjustment disorder became factually ascertainable within one year prior to the date of his claim and whether his service-connected disabilities prevented him from securing or following substantially gainful employment prior to April 25, 2011. The Court granted the JMPR in an October 2021 Order, vacated the part of the January 2021 Board decision that denied earlier effective dates prior to April 25, 2011, for the grant of a 70 percent increased rating for an adjustment disorder and a TDIU, and remanded the appeal back to the Board for appellate consideration. Subsequently, in April 2022 the Board granted an earlier effective date for an adjustment disorder and a TDIU, and remanded the issue of a TDIU prior to August 13, 2010, to the Director, Compensation Service, for extraschedular consideration. After a September 2022 supplemental statement of the case considered the record, this matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as the Director, Compensation Service, considered a TDIU on an extraschedular basis. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). A TDIU prior to August 13, 2010. The Veteran and his authorized representative seek entitlement to a TDIU on an extraschedular basis prior to August 13, 2010. See 11/14/2022 Appellate Brief. After reviewing the relevant lay and medical evidence, the Board finds that the competent and probative evidence is against a finding that the Veteran's service-connected disabilities preclude him from securing or following gainful employment prior to August 13, 2010. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran's 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; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question 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) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran's service-connected disabilities include an acquired psychiatric disorder (50 percent from March 13, 2009, and 70 percent from August 13, 2010); a left knee disability (10 percent from November 1, 2003, 100 percent from March 27, 2009, 10 percent from May 1, 2009, 100 percent from July 29, 2013, 30 percent from October 1, 2014, and 60 percent from August 24, 2020); left knee instability (10 percent from November 1, 2003, to March 26, 2009, and 10 percent from May 1, 2009 to July 29, 2013); tinnitus (10 percent from August 19, 2019); hypertension (non-compensable rating from August 19, 2019); and left knee scars (non-compensable rating from August 1, 2013, and a non-compensable rating from August 24, 2020). For background, as mentioned above, in April 2022 the Board granted entitlement to an earlier effective date of August 13, 2010, for a TDIU. The Board also remanded TDIU prior to August 13, 2010, for a referral to the Director of Compensation Service for extraschedular consideration. A May 2022 recommended against entitlement to an extraschedular TDIU. See 5/19/2022 VA Memo. The August 2022 advisory opinion determined that entitlement to an extraschedular TDIU prior to August 13, 2010, was not warranted. The Director concluded that the medical evidence did not establish that the Veteran's service-connected disabilities rendered him unable to obtain employment prior to August 13, 2010. See 8/24/2022 VA Memo. However, the Board notes that the Director's initial determination as to an extraschedular evaluation is not evidence. Wages v. McDonald, 26 Vet. App. 233, 239 (2015). However, now the procedural, due process hurdle of initial review by the Director has been cleared. The Board will now proceed to adjudicate this matter de novo. Indeed, the Board must determine whether the Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). In this case, the evidence of record establishes that the Veteran has some college education and last worked full-time in November 2009 in law enforcement. See 8/24/2020 VA 21-8940; see also 12/10/2009 Medical Treatment Record Government Facility, at page 2. Additionally, during the March 2014 Board hearing, the Veteran testified that he last worked on November 13, 2009, due to his knee disability. See 3/16/2014 Hearing Transcript, at pages 7-8. In this regard, there is no evidence, and the Veteran does not allege any workplace concessions due to his disability. Given that the evidence, to include the Veteran's testimony, shows that the Veteran maintained full-time employment until November 13, 2009, the Veteran is not entitled to a TDIU prior to that date. Turning to the competent medical evidence, VA treatment records prior to August 13, 2010, generally showed that the Veteran used a brace and ambulated with a cane. Additionally, his left knee intermittently gave out on him and locked after sitting or standing for 5 minutes. See 12/10/2009 Medical Treatment Record Government Facility, at page 7. Further, the record showed that he stopped working in November 2009 and went to school full-time to change the type of job due to his knee disability. See 1/27/2010 Medical Treatment Record Government Facility, at page 9. Moreover, he enjoyed doing volunteer work with children and serving as a mentor. See 9/24/2004 2010 Medical Treatment Record Government Facility, at page 13. A VA examination showed that he walked with an antalgic gait and had an abnormal McMurray test result, objective signs of pain and lateral joint line tenderness, and flexion limited to 140 degrees. However, the examination also showed that the Veteran had no edema, erythema, warmth of joint, hypertrophy of bony prominences, palpable crepitus, bulge sign, patellar ballottement, or joint laxity, instability, weakness, or incoordination. Additionally, repetitive motion testing did not cause increase in pain, change in range of motion, or joint fatigability, and he had normal strength, flexion, and Lachman's test results. See 4/18/2006 VA Examination. Further, a VA general medical examination showed that the Veteran's left knee disability had a mild to moderate effect on employability because of pain associated with crepitus. See 3/6/2004 VA Examination. A physical work performance evaluation summary report showed that the Veteran would be able to perform all activities at the medium level except for stair climbing and repetitive squatting. The report, in pertinent part, defined medium work level as being able to constantly sit and stand, frequently work bent over-standing/stooping, bent over-sitting, kneeling, walking, climbing a ladder, and repetitive trunk rotation-sitting and rotation-standing. Additionally, being able to occasionally work squatting/crouching, climbing stairs, repetitive squatting, and crawling. See 12/3/2009 Medical Treatment Record Non-Government Facility. After reviewing the relevant lay and medical evidence, the Board finds that for the period prior to August 13, 2010, the evidence is scarce and does not tend to show that the Veteran's service-connected disabilities are of such nature and severity as to prevent him from securing or following substantially gainful employment. In the Board's review of the relevant facts, to include the Veteran's education, work history, and impairment from his service-connected disabilities, he has a complex and multifaceted disability picture. However, the evidence demonstrated that the Veteran's service-connected disabilities did not render him unable to secure or follow substantial gainful employment prior to August 13, 2010, to include with consideration of relevant non-economic components, such as his education and occupational history. As noted, the Veteran completed one year of college education. See 8/14/2017 VA 21-8940. Furthermore, the evidence showed that prior to August 13, 2010, the Veteran was able to perform all activities at the medium level except for stair climbing and repetitive squatting. See 12/3/2009 Medical Treatment Record Non-Government Facility. This evidence tends to show that he had the physical ability and training to be capable of performing in a work environment that allowed him to alternate between sitting and standing and only required occasional lifting and/or carrying of approximately 10 pounds. These foregoing facts would tend to support that the Veteran was capable of securing and following substantial gainful employment in a job prior to August 13, 2010, such as a service representative or reception. Such a job would not require the Veteran to walk much or to climb ladders. The Board recognizes that the Veteran reported interference with work because of his service-connected knee pain and flare-ups. As noted above, prior to August 13, 2010, the Veteran had two 10 percent ratings for his left knee (total knee replacement and instability). These ratings are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Furthermore, the record showed that the Veteran started receiving disability in March 2009 due to his acquired psychiatric disorder. Additionally, the Veteran is currently in receipt of a TDIU from August 13, 2010 due to his acquired psychiatric disorder. The medical record, prior to August 13, 2010, does not tend to show that the Veteran's service-connected acquired psychiatric disorder impaired his ability to work to the extent that maintaining and obtaining substantially gainful employment was precluded. The Board finds such evidence to be probative and it tends to weigh against a TDIU for the period prior to August 13, 2010. (Continued on the next page) In sum, the Board finds the weight of the evidence is against a finding that the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment prior to August 13, 2010. The Veteran's occupational and social impairment due to his service-connected disabilities are considered significant (he has a 60 percent combined rating prior to August 13, 2010), but not enough to render him unable to obtain or maintain substantial gainful employment. See 38 C.F.R. § 4.1 (stating that the percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations). Therefore, entitlement to a TDIU on an extraschedular basis for the period prior to August 13, 2010, per 38 C.F.R. § 4.16(b) is not warranted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.