Citation Nr: 25005656 Decision Date: 04/25/25 Archive Date: 04/25/25 DOCKET NO. 12-17 995 DATE: April 25, 2025 ORDER Prior to February 12, 2010, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT For the appeal period stemming from the Veteran's November 27, 2009, claim, to February 12, 2010, his service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation, to include such that is consistent with his education and work history. CONCLUSION OF LAW Prior to February 12, 2010, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1977 to August 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2012 by a Department of Veterans Affairs (VA) Regional Office. In March 2015, August 2018, and August 2020, the Board remanded the issue of entitlement to a TDIU for additional development. In a May 2021 decision, the Board, as relevant, denied a TDIU prior to February 12, 2010. Thereafter, the Veteran appealed the Board's denial of such to the United States Court of Appeals for Veterans Claims (Court). In December 2022, the Court issued a Memorandum Decision, which vacated such portion of the May 2021 Board decision and remanded the matter for further consideration. In May 2023, the Board again denied a TDIU prior to February 12, 2010, and the Veteran again appealed to the Court. In an October 2024 Memorandum Decision, the Court vacated and remanded the May 2023 decision for further consideration. The case now returns to the Board for further appellate review. In this regard, in February 2025, the Veteran and his representative were notified that the appeal had returned to the Board and were provided with a 90-day window to submit additional evidence and argument in support of the appeal; however, in March 2025, they each submitted a statement and waived the remaining time in which to respond. Thus, the Board may proceed with the adjudication of the appeal at the present time. Entitlement to a TDIU prior to February 12, 2010. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and 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). Rating boards should submit to the Director of Compensation Service (Director) for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, 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). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." The Court also defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In Snider v. McDonough, 35 Vet. App. 1 (2021), the Court held the Board must address the Ray standard, i.e., whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities" to require referral of the issue of entitlement to a TDIU to the Director under 38 C.F.R. § 4.16(b), prior to reaching the question of whether the veteran's service-connected disabilities render him unemployable. The instant appeal stems from November 27, 2009, the date of receipt of the Veteran's increased rating claim upon which his TDIU claim is predicated, plus the one-year look-back period. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, he is service-connected for left knee chondromalacia, evaluated as 10 percent disabling, and right knee chondromalacia, evaluated as 10 percent disabling. Consequently, his combined rating is 20 percent prior to February 12, 2010. Thus, prior to such date, he has not met the schedular threshold for consideration of a TDIU. Nonetheless, in the August 2020 remand, the Board found that there was sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities for the appeal period prior to February 12, 2010. Thus, the claim was remanded in order to refer it to the Director for extra-schedular consideration. 38 C.F.R. § 4.16(b). In this regard, the Director found that a TDIU on an extra-schedular basis was not warranted in a January 2021 opinion. However, the Board must conduct its own de novo review of the issue. Wages v. McDonald, 27 Vet. App. 233, 238, 39 (2015); Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). As noted in the May 2021 Board decision, the Veteran asserts that his service-connected left and right knee disabilities prevented him from securing and following a substantially gainful occupation prior to February 12, 2010. Per the record, the Veteran has an Associate Degree in Business Administration, a Bachelor of Arts degree in Accounting, and is 21 hours short of a Master of Business Administration degree. His employment history includes work as a defense contractor for one year, a job with the National Credit Union from 1990-1993, and a part-time job at Lowes in 1998. The evidence, to include his January 2010, September 2011, and October 2020 TDIU applications (Veterans Application for Increased Compensation Based on Unemployability, VA Form 21-8940), indicates that he last worked full-time in 1993. Based on the above, the Board finds the record does not show the Veteran maintained even marginal employment during the period on appeal. Thus, the crux of the issue herein is whether the Veteran was rendered able to secure and follow a substantially gainful occupation as the result of his service-connected bilateral knee disabilities. Also as noted in the May 2021 Board decision, evidence prior to the appeal period, to include March 1998 and May 2001 VA examinations, reflect that the Veteran's bilateral knee disabilities could significantly limit functional ability during flare-ups and when used repeatedly over time, and his own report that such disabilities prevented him from doing activities during the day, respectively. Furthermore, a September 2011 VA examination, which is the only medical evidence proximate to the time period in question, reflects the VA examiner's determination that the Veteran's bilateral knee disability impacted his ability to work as he was unable to think when he stood and walked due to pain. As such evaluations were conducted contemporaneous to the time period in question, the Board affords them great probative weight. The Board acknowledges that, at a January 2016 VA examination, the examiner reported that the "Veteran states that his physicians not that he is unemployable based on his intractable knee pain for all employment;" however, such statement was made approximately six years after the time period in question and the Veteran has not explained how it is relevant to whether his bilateral knee disability rendered him unable to perform the physical and mental acts necessary for employment prior to February 2010. Furthermore, such is unsupported by the evidence contemporaneous to the period in question. Thus, the Board affords such statement no probative weight. The Board finds the probative evidence described above does not show the Veteran's service-connected disabilities, singularly or jointly, were of sufficient severity so as to render him incapable of performing the physical and mental acts required by employment consistent with his education and work history during the appeal period prior to February 12, 2010. In this regard, the record reflects that the Veteran's bilateral knee disabilities limit his physical and mental ability to perform work that required prolonged standing and walking. However, the Board finds the foregoing limitations would not interfere with the Veteran's ability to successfully secure and follow a substantially gainful occupation consistent with his education and work history in a sedentary position, which would alleviate the need to stand or walk for prolonged periods of time and, thus, without the resulting pain, allow him to think. In this regard, the Board notes that sedentary employment has the common meaning in society of non-physical, white collar, office-type work. Withers v. Wilkie, 30 Vet. App. 139 (2018). Specifically, given the Veteran's education, training, and experience, to include experience in office-type settings, the Board finds that he is capable of performing the mental and physical acts necessary for the successful performance of such type of position as such do not require physically intensive activities and are performed while sitting or standing at a desk. In this regard, such would allow the Veteran to alternate between sitting and standing, and would not require that he stand and/or walk for prolonged periods of time, which the Board finds is consistent with the physical and mental functional limitations associated with his service-connected bilateral knee disabilities as reflected by the evidence of record. Moreover, in accordance with the December 2022 Memorandum Decision, the Board acknowledges that a January 2016 VA mental disorders examination report reflects the Veteran's report that he worked for one and a half years as an accountant until he had an aneurism and could no longer work, and, after his aneurism, he never worked again. However, even in consideration of the severe cognitive effects the Veteran's aneurism may have resulted in, the Board emphasizes that he is not service-connected for such disability and thus cannot consider such symptoms in its determination of entitlement to a TDIU and the impact it may have had on his mental ability to secure and follow substantially gainful employment. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Nonetheless, in accordance with the October 2024 Memorandum Decision, the Board further finds that, had the Veteran not suffered his nonservice-connected aneurism in 1993, he would have retained the mental and physician ability to work, irrespective of his education and work history, prior to February 12, 2010. Specifically, as noted previously, while his bilateral knee disabilities limited his physical and mental ability to perform work that required prolonged standing and walking. However, as his resulting pain would be alleviated in a sedentary position, there is no indication that his service-connected bilateral knee disabilities would affect his ability to perform the mental acts necessary for such employment, to include those pertaining to memory, concentration, the ability to adapt to change, handling work place stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, 21 Vet. App. at 58. Further, the evidence does not otherwise indicate that the Veteran did not have the mental ability to use a computer, read, write, follow instructions, or complete other administrative tasks, which is inherent in sedentary employment. Rather, the weight of the probative evidence shows that the Veteran's service-connected bilateral knee disabilities did not preclude him from performing the mental acts necessary for him to engage in substantially gainful employment, irrespective of his education and work history. Further, although some difficulties were noted, the September 2011 VA examiner, who examined the Veteran in connection with his physical impairments, did not find his service-connected bilateral knee disability precluded all forms of employment. The Board affords significant probative weight to the VA examiner's opinion as such was based on physical examinations of the Veteran and a review of the record, to include his medical history and lay statements. Therefore, based on the foregoing, the Board finds that, for the appeal period prior to February 12, 2010, the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation, to include such that is consistent with his education and work history. Thus, a TDIU on an extra-schedular basis prior to February 12, 2010, is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence of record weighs persuasively against the Veteran's claim for a TDIU prior to February 12, 2010, the benefit of the doubt doctrine is not applicable and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, 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.