Citation Nr: 22012178 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 07-19 524 DATE: March 2, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 24, 2020, is denied. FINDING OF FACT The Veteran's service-connected right knee disability did not render him unable to follow substantially gainful employment prior to November 24, 2020. CONCLUSION OF LAW The criteria for a TDIU prior to November 24, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1970 to August 1973. He had additional service in the Pennsylvania National Guard from March 1976 to March 1977, with a period of active duty training in July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2009 the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript is of record. In February 2016, the Board issued a decision that denied entitlement to a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2017, pursuant to a Joint Motion for Remand, the Court vacated the Board's February 2016 decision to the extent that it denied entitlement to a TDIU. The claim was remanded by the Board in May 2017, March 2018, and October 2019. A November 2021 rating decision established entitlement to a TDIU on an extraschedular basis effective November 24, 2020. Since the Agency of Original Jurisdiction (AOJ) last considered the appeal, additional evidence has been submitted. The Veteran has waived his right to have the AOJ initially review the evidence; therefore, initial review of the evidence by the Board is appropriate. See 38 U.S.C. § 7105(e). 1. Entitlement to a TDIU prior to November 24, 2020 Entitlement to a TDIU was established on an extraschedular basis effective November 24, 2020. Since the issue on appeal stems from a formal claim for a TDIU filed in July 2006, the Board must decide whether the Veteran is entitled to a TDIU prior to the date established by the AOJ. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the 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, or 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). Marginal employment is not considered to be substantially gainful employment. Id. The Veteran is service connected for several disabilities affecting his right knee. His combined rating does not meet the schedular requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU at any point during the appeal. In the case of a veteran who is unemployable by reason of a service-connected disability, but who fails to meet these schedular percentage standards, the case should be submitted to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other veterans with equal rating of disability. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In his July 2006 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran reported that his right knee was the service-connected disability that prevented him from securing or following any substantially gainful occupation and that April 19, 2004 was date his disability affected fully time employment, he last worked full time, and that he became too disabled to work. He reported working as a trackman for Canadian Pacific Railway from April 14, 1985, until April 19, 2004, and that he was able to work for three days with Manpower as a clerk after his application was submitted January 6, 2006. The Veteran reported that he had left his last job because of his disability, that he only finished eighth grade, and that he had no other education or training before or since becoming too disabled to work. In a July 2006 VA Form 21-4138, the Veteran reported that he found it difficult to sit or stand for extended periods so he would sit a few minutes and then stand a few minutes. In September 2006, the Veteran's former employer Manpower reported in a VA Form 21-4192 that the Veteran last worked on February 1, 2006, in the mail room. No concessions were requested. The Veteran's assignment ended, and he did not contact Manpower for another assignment. In November 2006, the Veteran's former employer Canadian Pacific reported in a VA Form 21-4192 that the Veteran had worked as a bib mechanic from April 17, 1985 to April 26, 2004. The section for reason for termination of employment or if retired on disability was not filled out. In a November 2006 VA Form 21-4138, the Veteran reported that he continued to have increased pain and could not work. In a February 2007 VA Form 21-4138, the Veteran reported that he was still unable to work and had been put on narcotic drugs to deal with intense pain. An April 2007 letter from the Railroad Retirement Board indicates that the Veteran met the requirements for a disability annuity and that he had a railroad retirement disability onset date of January 11, 2006. The Veteran testified in July 2009 that he last worked full time in 2005 and had no part time employment since then. He indicated he left his last employment due to his right knee condition, asserting it was impossible for him to do the exact same job or be employed in the same field he had been for 17 years before then. He reported that the railroad doctor said it was his right knee and back, more the knee because that caused the back. In a June 2013 VA Form 21-8940, the Veteran reported that his right knee and its complications was the service-connected disability that prevented him from securing or following any substantially gainful occupation and that April 20, 2005, was date his disability affected fully time employment, he last worked full time, and that he became too disabled to work. He denied leaving his last job because of his disability, reported an eighth grade education, and had no other education or training before or since becoming too disabled to work. The medical evidence in this case consists of VA and private records, to include records obtained from the Social Security Administration and the U.S. Railroad Retirement Board, and VA examination reports and opinions. Contrary to the Veteran's assertions, private treatment records that predate the appeal period document that the Veteran reported in March 2003 that he had had an alcohol test at work and ended up seeing a counselor for substance abuse and the Veteran needed to know if he could go back to work. In May 2004, it was documented that the Veteran had tested positive for alcohol at work and found out he lost his job for it. An April 2005 record noted the Veteran was a recovering alcoholic who was on disability and had not found a job and "now it seems he is looking for disability because of his knee which to be honest" he has not complained about knee pain since December 2002. During a February 2006 VA examination, the Veteran reported that he had worked for Canadian Pacific Railroad from 1984 to 2004 as a trackman laying track and did not miss any work due to his knee pain. He was let go due to alcohol abuse and received railroad unemployment and alcohol recovery assistance before finally going on unemployment, which ended in November 2005. Since the beginning of December, he began to search for employment and was hired by Manpower and was currently at Diversified Technologies servicing Signa in the mailroom, a job he had just begun a few days before the examination. It was noted in a June 2006 record from the U.S. Railroad Retirement Board that the Veteran had been terminated by the railroad due to a second drug violation in 2004. It was noted that while employed by the railroad, he would work as much overtime as he was asked to do and had no problems with attendance other than when he had to do a rehab stint for his alcoholism. After he was laid off by the railroad, the Veteran tried to work for a temp agency but that only lasted a few short days. The Veteran underwent a Railroad Retirement Board disability evaluation in August 2006. Following a detailed history, the examiner found the Veteran had significant impairment because of the right knee disability, but also manifested significant limitations functionally in respect to the low back. The examiner concluded that the Veteran had significant limitation regarding functional capability; that the examiner would place him in the sedentary demand level only, consisting of seated work for the most part; and that the Veteran would not be able to squat, crawl, climb ladders, or kneel. The examiner also noted that there would be limitations in respect to repetitive bending and overhead work in respect to the low back. An October 2006 record generated as part of the Veteran's Railroad Retirement Board proceedings reveals that a medical consultant determined that the Veteran had exertional limitations occasionally being able to lift/carry objects weighing up to 20 pounds and frequently lift/carry objects weighing up to 10 pounds; standing/walking with normal breaks for a total of at least two hours in an eight hour work day; sitting with normal breaks for a total of at least six hours in an eight hour work day; being unable to walk on uneven terrain; and being unable to push/pull with his right lower extremity; and postural limitations - no ladder climbing and occasional climbing, balancing, stooping, kneeling, crouching, and crawling. In October 2006, the Veteran reported during VA treatment that his right knee pain got to the point where he could no longer perform his typical job duties safely and he was unable to retain his position with the railroad; he also reported that his ability to perform functional tasks was directly related to the level of pain he was experiencing. During an October 2006 VA examination, he indicated that he had not been working since April 25, 2004, because of his lower back and right knee. It was the VA examiner's opinion that the Veteran was not employable at the present time since he was still on oxycodone; the examiner also expected that he would not continue oxycodone for any length of time and his employment status may be different in one week or one month. Additional records from the U.S. Railroad Retirement Board show that in April 2007, the Veteran's medical impairments in order of severity include degenerative disc disease, torn ligaments right knee, plantitis [sic], hypertension, and alcoholism. He was not engaged in substantial gainful activity and was found to be totally and permanently disabled. A May 2007 record indicates that the Veteran was alleging disability due to degenerative disc disease, plantitis [sic], hypertension and alcoholism. It was determined that he had had a sedentary framework effective January 2006 through August 31, 2006; that the Veteran had a twelfth grade education; and that use of the sedentary framework directed a finding of disabled. The Veteran was granted benefits from the Social Security Administration (SSA) in June 2007 based on a primary diagnosis of degenerative joint disease and a secondary diagnosis of status post partial meniscectomy. The disability date was January 11, 2006, and it was noted the Veteran had a twelfth grade education. The Veteran underwent a VA psychiatric intake assessment in June 2007, during which he reported he was laid off of railroad work as a result of his use of alcohol and had retired with disability. During a VA examination in November 2007, the Veteran reported that he had medically retired due to his lower back and right knee. A June 2008 VA orthopedic consultation record documents the Veteran's report that he was placed on disability due to chronic back pain. During a June 2010 VA examination, the Veteran reported he was unemployed due to medial (physical problems) listed to be his back and knee. A December 2010 addendum provides an opinion that the disabilities that make the Veteran severely impaired to work are both his service-connected disability of right knee patellar fracture with arthritis and his nonservice-connected right knee meniscal disabilities. It was the examiner's clinical opinion that overall, the Veteran was severely impaired from obtaining or retaining gainful employment due to both his knee conditions, with the examiner clearly indicating that the knee disabilities could not be clinically segregated, and the examiner could not provide a specific percentage of limitation due to the specific entities because the knee is one functioning unit. The examiner also noted that if further review was needed, it should be done by an orthopedist. The Board sought a VHA opinion in August 2011, which was provided in October 2011. The orthopedic surgeon concluded that considering right knee pain, limited flexion, advanced osteoarthritis, and high dose narcotics use for pain control, the Veteran may not be able to do any kind of physically demanding jobs; however, he should be able to obtain and retain a gainful sedentary job with part time schedule with restrictions on the knee. During VA examination conducted in May 2013 by a nurse practitioner, it was determined that the Veteran's right knee disability limits physical and sedentary activities due to intense pain and fatigue from the prescribed pain medications. A June 2013 addendum opinion from the same examiner found that the Veteran's right knee disability was more than 50 percent responsible for unemployability in relation to his nonservice-connected disabilities. The rationale was that orthopedic notes have this knee status at the point of needing prosthetic replacement and that surgery is reserved as the final therapy for knee pain. This worsening degeneration is causing the Veteran increasing pain, limited mobility, and the need for morphine. VA sought another addendum opinion since the June 2013 opinion did not provide a clear explanation as to why the Veteran is unemployable by the service-connected right knee disability versus his nonservice-connected disabilities. An orthopedic physician provided an opinion in August 2013 that on the basis of the Veteran's service-connected "traumatic arthritis" of his right knee, the Veteran was limited to sedentary duty only, that is work in which the majority of time is spent seated. This is not "unemployability" based on the knee alone, since there are many occupations which are sedentary. The Veteran's right knee condition prevented him from having a job other than a sedentary job. It did not prevent him from doing or being employed in a sedentary job. The Veteran's knee condition affects him when he is up and walking. It would affect him in a secondary way of getting to and from work. It would affect him in a secondary way if he were taking pain medicine for his knee condition alone, and the examiner noted that the Veteran was taking pain medicine and does have other conditions, such as chronic low back pain, which cause or would cause him to take pain medicine. The examiner further noted that the Veteran was service-connected for a fracture of the right knee patella, which would be expected to affect the patellofemoral joint primarily. His work-related injury of September 12, 2002 involved a torn medial meniscus; current x-rays showed that the Veteran's current arthritis is most severe in the medial compartment, the compartment in which the torn meniscus was found, and not the patellofemoral compartment. The Joint Motion issued in February 2017 determined that the February 2016 Board denial of the claim for a TDIU failed to adequately consider the side effects of the Veteran's medications. The Board remanded the claim in May 2017 to schedule an examination that discussed the functional impact of the Veteran's service-connected right knee disability on his ability to maintain substantially gainful employment, to include addressing the Veteran's sitting, standing, and walking limitations, as well as specifically addressing any impairment or limitations caused by the Veteran's need for narcotic pain medication for the knee. The Veteran underwent a VA examination in July 2017 conducted by a nurse practitioner. The examiner noted that his right knee disability impacted his ability to perform any type of occupational task, specifically referencing an inability to sit, stand, walk, or climb for prolonged periods of time due to right knee pain. The examiner also said, however, that the Veteran may participate in sedentary occupation alternating in sitting, standing, and short walking. Sedentary work was defined as exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull; and sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally, and all other sedentary criteria are met. Since the examiner did not answer the question of whether narcotic use for right knee pain would render the Veteran unable to perform sedentary employment, the claim was remanded by the Board in March 2018. The Board specifically sought an opinion from a physician. During an October 2018 VA examination conducted by a nurse practitioner, the examiner indicated that the functional impact of the right knee disability was the Veteran being unable to sit still long enough for exam, needing to stand up and stretch several times due to pain in knees and back, and being unable to sit, stand, walk, or kneel for long periods of time. Since the October 2018 opinion was not provided by a physician, the Board remanded the claim in October 2019 in part to obtain an opinion from a physician. A Doctor of Osteopathy (DO), which is a physician, provided an opinion in January 2020 that the Veteran's usage of narcotics for his right knee pain condition has no impact on the ability to perform sedentary or physical activities of gainful employment. The Board also remanded the claim in October 2019 so that it could be referred to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b); a response was received in November 2021. The Director conceded that the Veteran's service-connected conditions cause occupational limitations, and that the preponderance of evidence showed he is unable to obtain or maintain gainful employment due to his service-connected right knee condition when considered apart from his nonservice-connected condition, but only found the evidence to support a finding of unemployability to be from November 24, 2020. Upon review of the record, the Board finds that the weight of the evidence is against the claim for entitlement to a TDIU prior to November 24, 2020. The Court has interpreted the phrase "substantially gainful employment" to include both an economic component and a non-economic component, specifically whether an occupation produces more than marginal income (economic component) and whether the Veteran can perform the physical and mental acts required by employment (non-economic component). See Ray v. Wilkie, 31 Vet. App. 58, 69 (2019). Regarding the economic component, the Veteran has not been employed and, therefore, has had no income, at any time during the claim prior to November 24, 2020; however, it still must be determined that his service-connected disorders, without regard to his age, made him incapable of performing the acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The weight of the evidence of record does not support such a finding. There are conflicting opinions prior to November 24, 2020, as to whether the Veteran's service-connected right knee disability renders him unemployable. The May 2013 VA examiner essentially asserted the Veteran is precluded from even sedentary employment; in contrast, the examiner who conducted the August 2006 Railroad Retirement Board disability evaluation and the VA reviewing physicians who provided opinions in August 2011, June 2013, and July 2017 all concluded that the Veteran's right knee disability would not preclude sedentary employment. In addition, the January 2020 VA examiner determined that the Veteran's usage of narcotics for his right knee pain has no impact on his ability to perform sedentary activities of gainful employment. The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In that vein, while the Board acknowledges that the Railroad Retirement Board and SSA have found the Veteran to be permanently unemployable, it is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Moreover, the determinations made by the Railroad Retirement Board and SSA were not based on the right knee disability alone, but rather on a combination of physical impairments, primarily a back disability. The Board finds that the evidence obtained from the Railroad Retirement Board and SSA is consistent with a determination that the Veteran's service-connected right knee disability, alone does not preclude sedentary employment. Sedentary employment is the common meaning in society of non-physical, white collar, office-type work. Finally, the Veteran asserted in his VA Forms 21-8940, submitted in July 2006 and June 2013, that he has only an eighth-grade education. This is inconsistent with his June 1975 application for VA education benefits in which he cited having received a GED in May 1973. The Veteran is also shown to have attended classes at Pennsylvania State University, Lackawanna Junior College, and Northeast Institute of Education with the intended goal of a degree in business management. The Board concludes the Veteran is shown to have an educational background suited to gainful sedentary employment. In sum, while the Veteran's right knee disability does result in some functional impairment, he does not meet the schedular requirements for a TDIU and the weight of the evidence does not show that he is unable to perform the physical and mental acts required by sedentary employment due solely to his service-connected right knee disabilities. For these reasons, the claim for entitlement to a TDIU prior to November 24, 2020 is denied. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.