Citation Nr: 22010536 Decision Date: 02/24/22 Archive Date: 02/23/22 DOCKET NO. 15-06 259A DATE: February 24, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The preponderance of the evidence does not establish that the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1983 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office. In December 2018, the Veteran testified in a hearing before the Board. In April 2019 and June 2021, the present issue was remanded by the Board for further development. The case has now been returned to the Board for further appellate action. Entitlement to a TDIU The Veteran argues that he has been unable to secure or follow substantially gainful employment since 2011. Throughout the period on appeal, the Veteran has been service-connected for tinnitus, with a rating of 10 percent, and a left knee disability, also rated at 10 percent disabling, for a combined disability rating of 20 percent. The Board also notes that from January 9, 2019, to July 31, 2019, the Veteran was assigned a temporary 100 percent rating for his left knee disability for purposes of convalescence. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period); but see Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that the Board may not dismiss as moot a claim for TDIU based upon a single disability when additional service-connected disabilities may entitle the Veteran to special monthly compensation (SMC) under 38 U.S.C. § 1114(s)). While the holding in Bradley has been considered, the Board finds that the grant of a 100 percent schedular rating from January 9, 2019, to July 31, 2019, for the left knee disability, renders the Veteran's TDIU claim moot for that period on appeal, as there is no possible additional benefit for the Veteran during that period based upon the current record. See Buie v. Shinseki, 24 Vet. App. 242 (2011). The Veteran's additional disability of tinnitus is only rated at 10 percent and there is no evidence or argument that he is permanently housebound. For the period on appeal subject to consideration for a TDIU, the Veteran's combined disability rating of 20 percent does not meet the schedular criteria for assignment of a TDIU under 38 C.F.R. § 4.16(a). During previous adjudication of the Veteran's claims before the Board, the Board found that the record warranted referral for consideration for a TDIU on an extraschedular basis. Upon review of the Veterans claims file, the Director of Compensation Service (Director) denied entitlement to an extraschedular TDIU in November 2021, finding that the evidence of record did not satisfactorily demonstrate that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. As the Veteran's claim of entitlement to a TDIU on an extraschedular basis was denied by the Director, the Board now has jurisdiction to address the merits of the Veteran's claim. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). The record reflects that the Veteran reports last working in July 2011. In a written statement to the Social Security Administration (SSA), the Veteran explained that his termination from that employment was due to using vulgar language with a co-worker. Prior to that employment that Veteran's work history demonstrates numerous positions held as a press operator, general laborer, dump operator, sanitation employee, and painter, from 2005 to 2011. He also previously worked in construction and as a corrections officer from 1986 to 2001. In a July 2011 tele-claim filed with the SSA, the Veteran alternatively reported that he previously stopped working due to not having transportation. In the Veteran's SSA application from January 2012, he reported that the following conditions interfered with his ability to work: depression, anxiety, hypertension, stomach pain, epigastric disease, esophagitis, left knee, chondromalacia of the patella with cyst, right shoulder, and tinnitus. He also reported that he was unable to stand for more than 5 minutes at a time, was able to walk approximately 100 to 200 yards without resting, but was no longer able to play basketball, jog, or run, due in part to his chronic knee pain. In a March 2012 vocational assessment completed by the Tennessee Department of Rehabilitation Services, it was noted that the Veteran was able to lift light weights of up to 20 pounds, had the functional capacity for the following: standing or walking for up to 4 hours a day; sitting for 6 hours a day; able to complete frequent pushing/ pulling of controls; could occasionally climb stairs or ladders, kneel or crawl; and could frequently balance, stoop, or crouch. There was no limitation noted for manipulative maneuvers, such as reaching, handling, and feeling. There were likewise no limitations noted for visual or communicative functions. Overall, the vocational examiner opined that the Veteran should adjust to other work, listing several occupations within his functional capacity and vocational scope. In an October 2015 mental health assessment, the reporting psychiatrist opined that the Veteran's depressive symptoms and mood swings make it difficult for him not maintain employment, as the Veteran has resulting angry outbursts and chronic paranoia which has led to him being fired in the past. The psychiatrist also reported that the Veteran's poor and limited coping skills cause him to be easily overwhelmed. It was also noted that the Veteran suffers from panic attacks triggered by large crowds and enclosed areas, making travel via public transportation difficult. It was also reported that the Veteran is unable to function independently due to his mental health conditions. In an October 2015 physical health assessment, full range of motion was noted in both knees. The Veteran was found to be able to sit for up to two hours without interruption and stand or walk for 15 minutes without rest. It was concluded that he could complete 8 hours of sitting within an 8 hour workday, and 2 hours of standing or walking. It was also medically determined that he did not require a cane to ambulate. Overall, his physical ailments were not noted as precluding him from vocational capacity. The Board has considered the SSA disability records, partially notated above, which do reflect that the Veteran's left knee disability and tinnitus were factors in determining the grant of full disability benefits, as they are conditions that the Veteran suffers from. However, the SSA determination was based upon the combined effects of several nonservice-connected conditions, including mental health disabilities, along with the Veteran's left knee and tinnitus disabilities, and is not dispositive of the issue before the Board. Most recently, the Veteran underwent a VA examination of his knee disability in December 2021. The diagnosis of Osgood Schlatter disease with chondromalacia patella of the left knee was confirmed. The Veteran reported flare-ups of his left knee disability, occurring weekly with up to 2-3 days of moderate to severe symptoms precipitated by daily activity. The Veteran further reported that flare-ups were mitigated by staying off of his feet. He also reported difficulty running, bending, kneeling, squatting, lifting, climbing, walking, sitting, and standing for prolonged periods of time after repeated use over time. There was no report of recurrent subluxation of the knee or effusion. Range of motion testing was considered to contribute to functional loss with regards to bending, kneeling, squatting, running, and walking, sitting, or standing for prolonged periods of time. Range of motion testing demonstrated pain in both passive and active testing of flexion and extension, including upon weight bearing. Objective evidence of crepitus was shown, as was localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional functional loss or limitation of range of motion. Pain was noted as limiting functional ability with repeated use over time. Flexion was to 90 degrees and extension was to 10 degrees. The examination was not conducted at the time of a flare-up; however, pain induced functional loss was estimated at limiting range of motion for flexion to 70 degrees and extension to 10 degrees during times of flare-up. The noted limitations were reported as interfering with standing and sitting due to loss of function with regard to bending, kneeling, squatting, running, and walking. There was no muscle atrophy, ankylosis, recurrent subluxation, ligament tear, patellar instability, dislocation, or shin splints. The Veteran has never been diagnosed with a meniscus condition, but did have arthroscopic tibial tubercle excision in January 2019 (as noted above for the period of convalescence). There were no findings of left knee lateral instability or overall joint instability. It was found that the Veteran regularly utilizes a brace and cane for his left knee but that the overall functional impact of his service-connected disability results in difficulty performing prolonged periods of sitting, standing and walking, repetitive heavy lifting, kneeling, squatting, climbing, and jumping due to pain. In a January 2012 audiology examination report, it was noted that the Veteran's tinnitus interfered with balance which may impact his ability to work. In addition, in support of the Veteran's claim, a July 2012 private evaluation report noted that the Veteran would be unable to stand for a period of 8 hours per day. The assessment included an opinion that the Veteran would be limited in sitting, stooping, standing, bending, lifting, and/ or walking during a 6-8 hour workday; however, periods of walking, sitting, or standing for two hours at a time would be tolerable. Pain from the Veteran's chondromalacia of the patella was noted as potentially causing disabling effects for some lines of work, but not all. Although the pain was noted as having been consistent throughout the physician's observations, it is documented that the report is from July 24, 2012, approximately two weeks after the physician began treating the Veteran. The Board finds that the opinions expressed within this record are less reliable than those provided within the VA examination and SSA examination reports, as they do not reflect a review of the Veteran's medical history or contain an assessment of range of motion testing or other medically documented parameters by which the Veteran's functional impact may be objectively assessed. Subsequent VA and private treatment records reflect mirroring accounts of the most recent VA examination report, albeit some with lessened severity of symptomatology weighing against the Veteran's claim. Although treatment records have accounted for the Veteran's disabilities as negatively impacting his ability to work, such noted impairment is not the equivalent to a finding that the Veteran is unable to work due to his service-connected disabilities. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The Veteran had a long-standing career in various fields, including as a correctional officer and laborer. His most recent termination from employment was confirmed by his employer as being due to the Veteran's violation of company policies, and not due to the Veteran's overall physical ability to perform the tasks of the position. The record is devoid of a definitive finding that the Veteran's service-connected disabilities so impact his functionality as to render him unable to secure and follow substantially gainful employment. The Veteran's poor history of the impact of his claimed ailments has been considered. The Board finds that his divergent accounts of physical limitations, along with the juxtaposition of the medical findings of the functional impacts of his disabilities calls to question the reliability of the Veteran's accounts. Therefore, the Board finds that the subjective reporting of such impact is less credible than the objective medical reports from private, VA, and SSA physicians alike, as reflected through the documents of record. Finding these to be the most reliable and probative accounts of record, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure and follow substantially gainful employment, in light of his years of documented industrial experience, along with the objective findings of the medical records. The Board acknowledges that there was sufficient evidence of record to recommend referral to the Director for consideration of assignment of an extraschedular TDIU. However, that referral was based primarily on the Veteran's lay statements that his service-connected disabilities prevented him from obtaining and maintaining gainful employment. Here, the finding that the Veteran is not entitled to a TDIU, to specifically include on an extraschedular basis, is based on a complete and thorough review of both the subjective reports from the Veteran, and the objective medical evidence of record which describes the functional impairment resulting from his two service-connected disabilities. As discussed above, for various reasons, the Board has accorded more probative weight to the wealth of objective medical evidence in the record, than to the Veteran's lay statements regarding the severity of his functional impairment. As such, while the evidence was sufficient to warrant referral, it is not sufficient to support a grant of entitlement to a TDIU on an extraschedular basis. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to a TDIU, to include on an extraschedular basis, is not warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.