Citation Nr: 22018332 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 16-50 307 DATE: March 28, 2022 ORDER A total disability rating based on individual unemployability (TDIU), on an extraschedular basis, is denied. FINDING OF FACT The Veteran's service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment consistent with his education and work history. CONCLUSION OF LAW The criteria have not been met for TDIU. 38 U.S.C. §§ 1154(a), 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.1, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1976 to May 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in November 2018, May 2020, and August 2021, when it was remanded for further development, that development was completed, and the case has since been returned to the Board for appellate review. Duties to notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board finds that there has been substantial compliance with the prior August 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The issue was remanded for extraschedular TDIU consideration in the first instance. A November 2021 memorandum from the Director of Compensation Service denied an extraschedular TDIU. Accordingly, the Board will proceed with appellate consideration. TDIU Legal Criteria It is the established policy of VA that all veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. Substantially gainful employment is work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran's service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran's level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. SSA determinations are relevant but not binding on the Board because there are significant differences between SSA and VA criteria. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) ("All veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.") Factual Background In the May 2017 brief the Veteran's representative alleged an inability to work due to his service-connected left knee disability. The claim was raised as a part of the left knee increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (noting that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record). The most recent rating decision showed the Veteran is service connected for sleep apnea at 50 percent and a left knee disability at 10 percent with a combined 60 percent rating. The Veteran submitted a September 2012 social security administration (SSA) disability determination. The Veteran was found to be disabled due to left knee pain, left foot, left ankle, depression, and migraines. The bulk of the Veteran's physical limitations were related to his left ankle disability including residuals from left ankle surgery. A September 2016 private treatment record noted left knee aggravating factors of squatting, turning, prolong walking and standing with relieving factors being rest and wearing a knee brace. The private provider also noted he was unable to do stairs at that time. The Veteran submitted a May 2019 TDIU application. The Veteran stated he last worked full-time in December 2014 as a general day laborer. The Veteran attributed his inability to work to his left knee disability and stated it has affected his left ankle, left hip, back and caused depression. The Veteran received a June 2019 VA examination. The examiner determined the Veteran's left knee disability prevented the Veteran from standing longer than one to two hours. In June 2019 the Veteran's former employer stated the Veteran last worked in August 2014. The former employer noted the Veteran was terminated because he had stopped showing up for work. The Veteran received an August 2020 VA examination. The VA examiner determined the left knee disability did not affect the Veteran's ability to work. The Veteran received an October 2020 VA examination. The VA examiner determined the left knee disability interferes with climbing, squatting, kneeling, standing, or walking for longer than 30 minutes. An October 2020 VA sleep apnea examination determined the Veteran's sleep apnea did not impact the Veteran's ability to work. The Veteran's representative submitted a March 2022 brief. The Veteran's representative argued TDIU should be granted consistent with the SSA determination. The Veteran's representative noted the SSA determination granted disability due to the left ankle, left knee, and depression but extensively supported from impairment due to the left ankle. Analysis The Board finds an extraschedular TDIU is not warranted. The most probative evidence of record indicates the Veteran is unable to work due to mostly non-service-connected disabilities. The June 2019 VA examination indicated the Veteran's left knee disability prevented the Veteran from standing longer than one to two hours. The October 2020 VA examination indicated the left knee disability interferes with climbing, squatting, kneeling, standing, or walking for longer than 30 minutes. The VA examinations were consistent with the September 2016 private treatment record finding. The limitations do not include sedentary work or labor with sufficient breaks and knee brace. Additionally, the Veteran's sleep apnea does not affect his ability to work. The Board notes the left knee disability causes physical limitations and the Veteran was a general laborer. However, the most probative evidence of record showed the physical limitations were based on the combined effect of non-service-connected disabilities. The September 2012 SSA determination indicated most physical limitations were related to the combined effects of the Veteran's left knee, left hip and left ankle. Specifically, the SSA determination highlighted significant impairment from the Veteran's left ankle limitations. Notably, the Veteran and his representative indicated the Veteran's inability to work was based on the combined effect of this left hip, left knee, left ankle, depression and back. In the March 2022 brief, the Veteran's representative noted the SSA determination was extensively supported by the left ankle impairment. The Veteran is not service- connected for his left ankle, left hip, back, or depression. The Board affords significant probative weight to the VA examinations, private treatment record, and SSA records. See Geib v. Shinseki, F.3d 1350, 1354 (Fed. Cir. 2013) (Although employability is ultimately a legal determination reserved to VA, the Board's judgment may be informed by and supported by medical evidence). Additionally, the Board affords significant probative weight to the Veteran's statements regarding the combined effects of his current disabilities. However, the Veteran is not service connected for all those disabilities. The assignment of TDIU is based solely on service- connected disabilities. The evidence does not indicate the Veteran's left knee disability and sleep apnea alone prevent him from obtaining and maintaining substantially gainful employment consistent with his education and work history. (Continued on next page) The Veteran can file for service- connection or reopening to address those other disabilities. Accordingly, a TDIU on an extraschedular basis is not warranted, and the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107(b). J. LEE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Whipple, C 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.