Citation Nr: 22010523 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 10-45 539 DATE: February 23, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The probative evidence of record shows that the Veteran's service-connected conditions preclude him from following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1982 to February 1984. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). TDIU In a January 2021 decision, the Court of Appeals for Veterans Claims (Court), vacated a May 2020 Board decision that denied entitlement to individual unemployability. The Board denied TDIU as there was no indication that the Veteran was not capable of sedentary employment. The Court determined that the Board failed to explain how it interpreted the concept of "sedentary work" and explain how the Veteran was capable of such work in the context of his education and work experience. The issue was remanded for the Board to correct this deficiency. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. 38 C.F.R. § 4.16(a). For these purposes, disabilities of common etiology are considered a single disability. Id. Although the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). A determination as to whether a Veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a Veteran must not receive income from employment that exceeds the poverty threshold for one person. The non-economic component requires consideration of a number of factors, including the frequency and duration of periods of incapacity or time lost from work due to a service-connected disability, the Veteran's employment history and current employment status, and the Veteran's annual income from employment, if any. See Ray v. Wilkie, 31 Vet. App. 58 (2019). The Veteran was service connected for left knee internal derangement with instability, at 20 percent from July 22, 2003; left knee internal derangement at 10 percent from July 22, 2003; and generalized anxiety disorder associated with left knee internal derangement with instability at 50 percent from August 8, 2019. The Veteran's anxiety disorder is secondary to his knee conditions and as such all three conditions are considered a single disability based upon common etiology for TDIU purposes. The Veteran is in receipt of a combined evaluation of 60 percent from August 8, 2019. Therefore, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU from August 8, 2019 onwards. Prior to that date, however, the Veteran's claim for TDIU must be evaluated on an extraschedular basis for the majority of the period on appeal. As the minimum criteria were not met, under 38 C.F.R. § 4.16 (a) prior to August 8, 2019, the Board remanded this matter in April 2017 and November 2018 for referral to the Director of Compensation Service (Director) for consideration. In December 2019, the Director considered and denied the TDIU claim on an extraschedular basis. The Director determined that the Veteran was capable of sedentary work despite his left knee condition. The Board notes, however, the Director's decision is not evidence, but is rather akin to a de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). Thus, the Board may now review this claim on an extraschedular basis. According to the May 2014 application for increased compensation based on unemployability, the last time the Veteran worked full-time was in 2007. See also, December 2021 Representative Argument. He was self-employed and worked zero to 20 hours per week from 2008 to 2010. The Veteran reported that he has a high school education with additional training in masonry from the Locklin Tech Center. His career was largely in masonry and even when self-employed from 2008 to 2010, the Veteran was working as a mason. This history from his May 2014 application is consistent with a VA Vocational Rehabilitation and Employment note that documents the Veteran's claim for benefits wherein the Veteran requested vocational school as a result of his knee disabilities precluding his occupation as a trained block and brick mason. The Board notes that this claim was eventually closed due to the Veteran's failure to pursue. In November 2009 VA treatment records, the Veteran complained of knee instability. He stated that his left knee catches and felt like "jello." According to VA treatment records, the Veteran was issued a knee brace in July 2010. December 2011 VA records indicated that the Veteran was ambulating slowly due to pain. In a September 2010 VA examination to evaluate his left knee, it was noted that the Veteran was working five days a month as a maintenance man and mason at a store. The Veteran reported left knee weakness and instability. He stated that he was unable to lift blocks and stone and could not climb scaffolding at work. In September 2010, the Veteran's former employer submitted correspondence in which they stated that the Veteran was physically unsuitable to be employed in masonry for their company. The former employer noted that the Veteran had too many limitations that would put undue hardship on the Veteran and his coworkers. They noted some restrictions such as the Veteran's inability to carry more than 40 pounds, mix 95-pound bags of cement or mortar mix, or climb scaffolding. In a May 2014 correspondence, the Veteran's spouse reported that the Veteran was now having difficulties with activities of daily living. She noted that he had difficulty with chores, getting in and out of the tub, walking up steps, mowing the grass, and standing for prolonged periods. In October 2014 the Veteran's primary care physician submitted a letter in which he confirmed that the Veteran had been unemployed for two years. It was noted that the Veteran wore a left knee brace for stability, had chronic pain, and was unable to work. In an October 2014 VA record the Veteran complained of knee pain and stated that without the knee brace, his knee deviated laterally. In August 2014 VA records the Veteran noted that his knee would give out occasionally and was often locked up when he woke up. The Veteran underwent another VA examination for the knee in February 2016. The examiner determined that the Veteran's left knee condition limited standing, walking, and stair climbing. The examiner ultimately found that the Veteran's left knee condition rendered him unable to secure substantially gainful employment. He noted that the Veteran needed to use a cane to walk, was incapable of prolonged walking or standing, and could not climb stairs. He stated that prolonged sitting was also uncomfortable. The Veteran was provided with another VA examination to evaluate his knee in May 2017. It was noted that the Veteran was unable to fully bend his knee. The Veteran stated that he was unable to walk with his grandson and that he had difficulty working in his green house. In an April 2019 VA treatment record, the Veteran tearfully relayed that he had not been able to work for the last 10 years. He stated that he was still able to help around the house by cleaning and doing the laundry. July 2019 VA records indicated that the Veteran complained of his knees locking and giving way. The Veteran stated he could sit or stand for approximately 10 to 15 minutes before the pain escalated. He could only manage walking about 200 yards and standing, lying, bending, lifting, twisting, and sitting were most painful. He utilized a cane, pain patches, cream, and rest to treat his pain. The Veteran was also diagnosed with generalized anxiety disorder, more specifically medical phobia. He stated that his anxiety was centered mostly around medical procedures. He endorsed depression and panic attacks and noted that his knee condition aggravated his anxiety. In a January 2020 VA mental health note, the Veteran reported anxiety symptoms such as having difficulty driving in traffic, inability to be in crowds, desire to isolate from others, hypervigilance, and paranoia. In January 2020 the Veteran's spouse submitted a statement in which she described his chronic pain and severe anxiety. She stated that the Veteran did not go anywhere for months at a time and that though he attended VA medical appointments, he believed that the VA was attempting to manipulate his examinations. In January 2020 a VA nurse submitted a letter in which she stated that the Veteran could not maintain steady employment due to his anxiety and his chronic pain. She stated that the Veteran had difficulty with trust and working with civilians in public places. As the Veteran suffered extreme anxiety episodes in public, he could not maintain gainful employment. The nurse noted that the Veteran's spouse had to drive him to his appointment due to his anxiety and explained that the Veteran would have difficulty describing his symptoms because of his mental health condition. The Veteran was provided with a VA examination in January 2020 to evaluate his mental health. The examiner noted symptoms of anxiety, panic attacks that occur more than once a week, difficulty in establishing and maintaining work and social relationships, and difficulty adapting to stressful circumstances including work. The examiner determined that the Veteran suffered from occupational and social impairment due to mild or transient symptoms which decrease work efficiency. In August 2021 the Veteran provided a statement. He noted that while under his last employer, he was given only easy tasks and that when he attempted to apply to a new position in 2007, he was deemed unsafe for the job. He then became self-employed with his wife who he stated did most of the work. He then reiterated the symptoms associated with his left knee condition. He stated that his knee condition also disrupted his sleep, his ability to work, and his ability to enjoy the outdoors. In December 2021, VA received an October 2021 private vocational assessment. Notably, the assessment focused solely on the Veteran's service-connected knee disorders and not his service-connected psychiatric disability. The Veteran described difficulty with prolonged sitting, standing, bending, walking, and squatting. He could not climb stairs or scaffolding, could not lift, or carry objects, and reported falling due to knee instability. The Veteran stated that he could not stand or walk for longer than 10 to 15 minutes and after five to 20 minutes of sitting he needed to shift positions due to knee pain. He noted that he was able to do light house chores but must stay off his left knee and shift position every five minutes utilizing a cane, bar stool, or counter for support. The Veteran also stated that he fell often due to the left knee instability. He reported that he used to be an outdoorsman and his knee has hindered his social life as he can no longer spend time outdoors with his friends. He described how these limitations affected him when he worked for his last employer. He also stated that after leaving his last employer he was unable to secure employment as his reputation preceded him and he was deemed unsafe for the work site. The Veteran became self-employed, but he was unable to work for more than one day a week due to his chronic pain. The vocational consultant determined that the Veteran was disabled and unable to secure and follow substantially gainful employment as a result of his knee condition. Utilizing the D.O.T., a standard created by the United States Department of Labor, the vocational consultant found that the Veteran was not capable of even sedentary work. The consultant cited the Veteran's VA treatment records and examinations and stated that work at the sedentary physical demand level necessitated prolonged sitting, of which the Veteran was incapable. She also noted the additional restrictions of the Veteran's inability to walk, stand, bend, or squat and his increased fall risk due to knee instability. The consultant then noted that other requirements of maintaining gainful employment included sustaining focus for two hours at a time, remaining free from distraction or interruption by coworkers, taking only scheduled breaks, attending work on a regular schedule without absences or tardiness, and consistently producing the minimum amount of work. The consultant stated that the Veteran's knee condition interfered with all of these requirements. The consultant then noted that the Veteran had few skills outside of masonry and that these skills would not transfer to sedentary work. The Veteran had no administrative or clerical experience. Based on the evidence of record, the Board finds that the Veteran's service-connected disabilities, namely his left knee condition, precludes him from obtaining and maintaining substantially gainful employment. The VA treatment records and examinations indicate that the Veteran is unable to perform any kind of physical duties. He is unable to walk, stand, squat, bend, or lift anything substantial. Additionally, the Veteran is prone to falling, making it unsafe for him to be present at most build sites. This precludes his ability to work in masonry, his occupational industry of many years, or any other physically demanding job. The September 2010 letter from the Veteran's former employer confirmed that the Veteran would not be able to work as a mason due to his knee condition. The evidence also indicates that the Veteran does not have education, experience, or training in other fields and would not be able to transition effectively into even a sedentary work environment. Regarding sedentary employment, in a recent decision, the Court noted that the VA has not explicitly defined the meaning of "sedentary employment." Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each Veteran's education, training, and work history." Id. at 149-150. Merriam-Webster online dictionary defines "sedentary" as (a) "doing or requiring much sitting" or (b) "not physically active." https://www.merriam-webster.com/dictionary/sedentary. The Board employs this definition in the current analysis. The Veteran has experience and training as a mason, and there remains no indication the Veteran has an occupational background that would apply to a sedentary occupation. The Veteran has only worked as a mason following his military service and he has no experience in administrative or clerical work. Additionally, the evidence of record indicates that the Veteran is unable to sit for a prolonged period which is not conducive to work requiring sustained sitting or little physical activity. These findings apply before and after the August 8, 2019, date, on which the Veteran's psychiatric disability is service connected. On and after August 8, 2019, his psychiatric symptoms would further interfere with any employment. The Veteran has consistently reported his service-connected conditions have an impact on his ability to secure employment. There are statements from a VA physician, VA nurse, and private vocational consultant attesting to the Veteran's inability to work based on his work history and current service-connected disabilities. The Board finds the October 2021 private vocational assessment to be particularly probative because the occupational specialist considered the Veteran's occupational history, described how this is impacted by his service-connected knee disabilities, and supported her opinions with detailed rationale. (Continued on the next page) In short, the most probative evidence establishes that the Veteran's service-connected disabilities render him unemployable, including on an extraschedular basis prior to August 8, 2019. The Veteran's skillsets from his occupational history are essentially precluded by his service-connected knee disorders, and the Veteran does not appear to have additional skillsets that are transferrable into other occupational forms. Even those occupations that have fewer physical demands, such as sedentary employment, defined above, are impacted by the Veteran's knee disorders. Finally, to be as favorable as possible to the Veteran, the Board will allow the agency of original jurisdiction (AOJ) to assign the effective date for the grant of TDIU in the first instance both to take account of any newly implemented rating and to make as complete a record as possible so the Veteran can appeal the effective date assigned by the AOJ if he is not satisfied with it. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an AOJ decision, such an argument is unavailing unless a notice of disagreement is then of record as to the downstream issue of an effective date for the assignment of that rating"). Steve Ginski Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.