Citation Nr: 25006167 Decision Date: 05/07/25 Archive Date: 05/07/25 DOCKET NO. 12-26 262 DATE: May 7, 2025 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence of record persuasively favors a finding that the Veteran's service-connected disabilities have not precluded him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met.? 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.340, 3.341, 4.16.? REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to February 1972. This case comes to the Board of Veterans' Appeals (Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office. This case was previously remanded for further development in September 2015, April 2018, and April 2023. In May 2014, the Veteran participated in a hearing before a Veterans Law Judge (VLJ). The VLJ who conducted the hearing is no longer employed at the Board; a February 2023 letter informed the Veteran of this. The Veteran did not respond to the letter asking him if he wanted to participate in another hearing. The Board denied this issue is a March 2024 decision. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court), and in a January 2025 Order that effectuated a Joint Motion for Partial Remand, this denial was vacated and remanded to the Board for readjudication. TDIU The Veteran has applied for a TDIU. In January 2011, the Veteran wrote that because of his physical disabilities, he was unable to find work suitable for his condition, because another office job would be impossible to find, and physical labor would not be possible. In October 2019, the Veteran submitted a VA Form 21-8940, on which he indicated that he had stopped working at the US Postal Service in October 2009, but that his disability affected his full-time employment since December 18, 2015. He wrote that he was unable to follow a gainful occupation due to his knee disorders and his hearing loss. He wrote that he was scheduled for knee replacements, that his hearing loss made it difficult for him to converse on the phone, and that while he had been doing volunteer work, it had become difficult for him to set up the tent and haul equipment for presentations due to knee pain and swelling. He wrote that the headhunters who were originally contacting him had stopped considering him for employment when they discovered his age. He indicated that he had completed 4 years of college. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.? 38?C.F.R. §?4.16(a).? To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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.? Id.? For the purposes of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident may be considered to be "one" disability.? 38?C.F.R. §?4.16(a). The Veteran had the following disabilities that were service connected since July 2010: left knee traumatic arthritis limitation of extension (30 percent); left knee meniscectomy with instability (10 percent); left knee meniscectomy cartilage removal (10 percent); right knee degenerative joint disease (10 percent); tinnitus (10 percent); bilateral hearing loss (0 percent); and left knee scar (0 percent). This allows for a total rating of 60 percent, and therefore at this point, the Veteran had not met the schedular criteria for entitlement to a TDIU. From December 22, 2016, the Veteran was also awarded a 10 percent rating for bilateral hearing loss, and from January 19, 2021, he was awarded an increased rating of 30 percent for the right knee and service connection for left hip osteoarthritis (10 percent). The Veteran then had a total evaluation of 80 percent, and his left knee disorder ratings combined to 40 percent, and therefore he did meet the schedular criteria for a TDIU from January 19, 2021. See 38?C.F.R. §?4.16(a). Even when the percentage requirements of 38?C.F.R. §?4.16(a) are not met, a TDIU may be granted on an extraschedular basis in exceptional cases when a veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disabilities.? 38?C.F.R. §?4.16(b).? The Board cannot award a total disability rating based on individual unemployability in the first instance, because 38?C.F.R. §?4.16(b) requires that the issue first be submitted to the Director of the Compensation and Pension Service for extraschedular consideration.? Bowling v. Principi, 15?Vet. App.?1, 10 (2001).? In April 2023, the Board referred the issue of entitlement to a TDIU on an extraschedular basis to the Regional Office for administrative review by the Director of Compensation Service. The Director then issued an Advisory Opinion in December 2023 which found that none of the available evidence supported the contention that the Veteran's service-connected disabilities prevent all types of gainful activity. She wrote that while the Veteran would have difficulty with a physically demanding occupation, there was no evidence that he would be precluded from sedentary employment, and therefore the evidence did not show that the service-connected disabilities prevented employment. Because the Director determined that an extraschedular evaluation was not warranted, the Board now has jurisdiction to decide the claim on the merits, including for the period prior to January 29, 2021, when the schedular criteria were not met.? For a veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm.? The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.? A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.? The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.? See?38?C.F.R. §?4.16(a).? In determining whether an appellant is entitled to a TDIU, neither the appellant's nonservice-connected disabilities nor advancing age may be considered.? 38?C.F.R. §?4.19.?? The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components.? See Ray v. Wilkie, 31?Vet. App.?58, 73 (2019).? The economic component refers to an occupation earning more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person.? Id.? The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment.? Id.? Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity).? Id.? After reviewing all of the evidence of record, the Board finds that the weight of the evidence is against finding that the Veteran is unemployable by reason of his service-connected disabilities.? At the August 2010 VA examination for the left knee, the examiner found that the Veteran's disorder had a moderate impact on chores and shopping, a severe impact on exercise, and prevented sports. Because of his knee disorder, he no longer hunted, and he had stopped using the treadmill. He reported that he had retired from the Postal Service because he was eligible by age or duration of work. The October 2010 audiology examiner found that the Veteran's hearing loss would cause significant difficulty hearing in adverse listening situations. He wrote that physical and sedentary employment was possible, provided the Veteran's employer can provide reasonable accommodations given his current degree of hearing loss. At the February 2012 VA examination, the examiner indicated that the Veteran's knee disorder impacted his ability to work by becoming painful while working at a desk in an office, and when carrying boxes or moving the knee. At a June 2012 VA examination, the Veteran's functional impact was pain while working at his desk and standing, and the pain was exacerbated by work-related activities, including prolonged walking, standing, lifting, and carrying. The October 2013 VA examiner wrote that the Veteran was not able to stand or sit for long periods of time due to increased pain. The January 2016 VA examiner found that the Veteran's left knee disability would interfere with duties associated with prolonged standing, walking, pushing, pulling, lifting, and carrying. At an April 2016 hearing loss evaluation, hearing loss was found to impact his ability to work by making hearing on the telephone more difficult and more difficulty hearing in general. Tinnitus did not impact his ability to work. A January 2017 hearing loss evaluation found that hearing loss and tinnitus did not impact the Veteran's ability to work. At the September 2019 VA examination, the examiner found that it was difficult for the Veteran to stand for long periods of time or walk long distances. The September 2020 VA examiner found that the knee disorder would impact employment by making the Veteran less able to sustain prolonged standing, walking, running, climbing, rising, squatting, kneeling, and sitting. September 2021 examinations of the left hip and right knee found that they impacted his ability to do physically demanding work that required prolonged walking or weight-bearing. The November 2023 VA examiner found that the Veteran's disability caused difficulty with walking, standing, or climbing stairs for any prolonged period of time. Pain caused limited mobility and impairment with any extended use, and it was accompanied by swelling and instability which made it difficult to bend, stand, or walk for prolonged periods. The Veteran's VA treatment show that in October 2009, the Veteran reported that he had been working full time at the Post Office in the sales department, and in November 2009, he reported that he had retired. In November 2009, the Veteran reported that he was handling his retirement well and was enjoying it. He stated that "everyday is a Saturday." In February 2010, the Veteran reported that he was hired by the census and was looking forward to the job. At a September 2010 audiology assessment, the Veteran reported difficulty hearing with understanding speech, using the telephone, and using the television. In June 2015, the Veteran reported significant difficulty understanding speech in background noise, at a distance and w/out visual cues. Veteran also has difficulty hearing the television and conversing on the telephone. In 2018 and 2019, the Veteran continued to report that he was still working with a Veterans Service Organization, and that this work was important to him. The Veteran has also applied to the Veteran Readiness and Employment (VR&E) program, previously known as Vocational Rehabilitation and Employment services. Through numerous evaluations, reports, and e-mails, these records show that the Veteran was able to successfully participate in the program and find the type of work he was seeking. An April 2011 evaluation found that the Veteran had an employment handicap, but it was not severe. His disabilities hindered his ability to walk long distances, stand for prolonged periods, lift heavy objects, and caused sleep disturbance. He had difficulty hearing on the phone and concentration difficulties. It was found, however, that given his long work history with the Post Office and his lengthy volunteer career, it was likely that given the appropriate services, he would succeed in obtaining and maintaining employment. The Veteran reported that he was retired and financially secure, and that he was only looking for part-time employment, and would consider volunteer employment. In May 2012, it was arranged for the Veteran to undergo some courses to improve his computer skills and to help him with a job search. The Veteran did course work to improve his computer skills, and a part-time volunteer position was found for the Veteran that met his aptitude and interests in 2015. A February 2016 follow-up found that the Veteran was quite happy with the work that he was doing to assist other veterans, and that working part-time fit into his desires and socio-economic need in his retirement status. The closure statement discussed how the Veteran's primary interest was to assist veterans with a nonprofit agency, and that he had reached this vocational goal. He had successfully updated his technical skills and resume, and his current position met his aptitude, skills, and interest. In an October 2019 statement, the Veteran wrote about how the heavy lifting and carrying in his job with the Veterans Service Organization had taken a toll on his knee. He wrote that he took over this program and it had now become "phenomenally successful," and that they were invited to attend many public and private events to spread their message. He wrote that some events were very long, such as the county fair, and that it often takes him a week to recover from such events. He wrote that he loses strength in his left leg and knee and becomes debilitated until he has to recover. He wrote that development of the program has kept him busy with research and development of a resource guide for veterans and their families, and that he was so busy with this, he was prevented from rescheduling his knee replacement surgery. He wrote that even after VR&E training, he was unable to get regular office work, because they wanted experienced people and he did not have the skills needed. He wrote that he also had such loud ringing in his ears, he was unable to understand phone conversation clearly. In October 2019, the Veteran again applied to the VR&E program in order to attend additional on-line computer courses to improve his computer skills. On his application, he wrote that he had an Associate degree from a community college and a Bachelor's degree from a university. On his application, he discussed how his left knee pain and hearing loss difficulties made work more difficult, such as how it was hard to set up heavy items and the tent when doing presentations. He wrote that it was difficult to hear on the phone. A November 2019 counseling record discussed how the Veteran was currently volunteering as lead navigator with a veterans organization, and that he was rehabilitated in this position as he was at retirement age and not concerned about income. However, the Veteran now stated that he would like to be paid for his services, but he needed to learn how to write grant proposals for the organization to remain operational. The Veteran's vocational impairment was impairment in standing/walking for long periods of time, heavy lifting, kneeling, crawling, and stooping; chronic ringing in the ears, affecting concentration; and difficulty hearing over the telephone. The Veteran's vocational plan was approved, and he was enrolled in Grant Writing courses and courses in non-profit management. In spring 2020, he took two courses at the University of Rhode Island and received an A- and a B. An August 2021 report on discontinuance of VR&E stated that the Veteran had struggled with coursework when the classes went on-line due to Covid. He did not want to complete the courses in a virtual format, but also did not want to go outside often or in areas where there were a lot of people he was fearful of getting Covid, and therefore he would stop attending the courses at this time. First, the Board acknowledges that the Veteran meets the "economic" component for an award of a TDIU, in that he is not currently employed in a job that pays more than a marginal income. While the Veteran does work for a non-profit organization, he does this on a volunteer basis, and does not receive a salary. See Ray, 31?Vet. App.?at 73.? As concerns the second, "noneconomic" component, the Board finds that the evidence of record does not show that the Veteran is so disabled due to his service-connected disabilities that he would be unable to secure and follow employment that would earn more than marginal income, is outside of a protected environment, and is consistent with the Veteran's history, education, skills, and training. While the evidence does show that the Veteran has disabilities affecting his knees and left hip, and these disabilities would likely prevent him from working in any strenuous, physical employment, the weight of the probative evidence indicates that it would not prevent him from performing work that was primarily sedentary. The CAVC cautioned in Ray that VA regulations do not define what constitutes sedentary work. Ray, 31?Vet. App.?58. Hence, the Board must explain how the term is applied in a particular case. The nature of sedentary employment is considered 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. See Withers v. Wilkie, 30?Vet. App.?139, 149-50 (2018). The Board finds that appropriate sedentary work in this case could be a job that allows for sitting most of the time, although some standing and walking would be required, and the tasks would be ones that did not require lifting or carrying heavy objects, and which included job tasks such as writing, typing, talking, reading, or filing, and which were consistent with the Veteran's skills and cognitive abilities. The Veteran has a college degree, and he has demonstrated that he has skills in researching, writing, planning events, and using a computer. The Veteran participated in the VR&E program in order to improve his computer skills, and this initial goal was found to be accomplished. The Veteran then took a position working for a Veterans Service Organization, and while the work was not paid, the evidence shows that this was by the Veteran's own choice, and not because it was not possible for him to obtain work that was paid. By the Veteran's own admission, he was financially secure and did not need the work to be paid, and he has reported many times that he finds this work to be important and fulfilling. The Veteran has written about how he has been conducting extensive research and development of a resource guide for veterans and their families in this position, and he eventually came to manage his branch of the Veterans Service Organization. The Veteran then again applied to the VR&E program in order to obtain skills in writing grant proposals. The Veteran took two courses and did well, receiving a B and an A-, and there is no indication that he required any special accommodations or had any impairment with his studies related to his service-connected disabilities. This again demonstrates that the Veteran has advanced skills in reading, researching, and writing. The Veteran discontinued these studies not because of his service-connected disabilities, but because of the challenges and risks of studying during the Covid pandemic. The Board finds that the evidence clearly shows that the Veteran is capable of the types of job activities that would be associated with his work with the Veterans Service Organization and with being a student, such as researching, preparing reports, organizing events, maintaining a calendar, and routing work assignments. This is consistent with all of the medical evidence of record, including the VA examinations, which found that the Veteran was prevented from extensive physical activity, and that his lower extremity disorders made activities such as prolonged standing and walking much more difficult, there is no indication that he would be prevented from performing the type of activities required in a sedentary position, or even one that had some walking and movement, but allowed for frequent sitting breaks. The Board acknowledges that several VA examiners have indicated that the Veteran does experience pain while working in an office, even while sitting. The VA examiners who performed knee examinations in February 2012 and June 2012 wrote that when the Veteran was working, he had pain while working at his desk, most especially in the left knee. The October 2013 VA examiner wrote that the Veteran was not able to sit for long periods of time due to increased pain. The September 2020 VA examiner found that the knee disorder would impact employment by making the Veteran less able to sustain prolonged sitting. While the Veteran did report having pain in his knee even while working at a desk, this pain did not prevent him from being able to complete complex projects while sitting and working, such as coursework and creating a veterans' guide, as has been discussed extensively herein. The Veteran has not reported whether he ever used a standing desk or simply did frequent repositioning or movement while working at a desk in order to help manage the pain in his knee, but the evidence does not indicate that the Veteran's pain in his knee was so substantial that it prevented him from being able to perform sedentary-type work. Even for the VA examiners who wrote that the Veteran had knee pain while seated, they did not indicate that the Veteran was unable to work. They were asked to describe how the knee condition would impact his ability to perform an occupational task, and the presence of pain was one way that his occupational functioning was impacted. The Veteran may indeed be distracted by pain in his knee while seated at a desk, and this certainly could reduce his overall productivity while working. The Veteran has been assigned compensable ratings for his knee disabilities throughout the entire appeal period. The Board points out that the purpose of a TDIU is not to make up for the decrease in earning potential caused by a disability-this is what the disability benefits payments themselves are for. The percentage ratings represent as far as can practicably be determine the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. A TDIU is meant to support veterans who are incapable, due to their physical or mental disabilities, of earning a living wage. See 38 C.F.R. § 4.16(a). It is not meant to provide further compensation to a veteran just because his potential earnings have been reduced. Therefore, while the evidence indicates that the Veteran likely would experience knee pain while sitting for long periods, and the distraction caused by this pain, or the time lost from having to take breaks or reposition the body, could cause a decrease in earning potential, the evidence overall does not indicate that this pain would prevent the Veteran from maintaining any gainful employment. In spite of this knee pain, the Veteran continued to be able to perform office and computer-related tasks throughout the appeal period, as evidence by his successfully completing school courses and projects, and through his own testimony regarding his ability to successfully work on tasks while seated at a desk and using a computer. The Veteran is also service connected for bilateral hearing loss and tinnitus, and he has reported that his hearing loss and the ringing in his ears has made it more difficult for him to use the telephone, because he cannot always hear what is said very well. The Board does not find, however, that this symptom is of such severity that it would preclude all sedentary employment, nor is it the type of impairment which would necessarily be a great hindrance in a sedentary office job, as the Veteran is able to use a computer well, and most business communication now occurs through electronic correspondence rather than through spoken telephone communication, and computer software can transcribe messages from the telephone. While the Veteran would therefore likely be precluded from work that required extensive oral communication, he has nevertheless been able to work on clerical, research, and written communication activities well throughout the appeal period. The evidence of record overall shows that his service-connected disabilities, even when combined with hearing loss and tinnitus, do not preclude him from meeting the physical demands of this type of office work. The Board has considered the Veteran's complete disability picture, but does not find that the physical limitations from his service-connected disabilities would preclude him from following the expectations of sedentary employment. The Veteran is not service-connected for any mental disorder, and here is no indication that his disabilities cause any impairment in his memory, concentration, ability to adapt to change, ability to handle workplace stress, ability to get along with coworkers, or to demonstrate reliability and productivity. The Veteran's physical symptoms limit his ability to stand and walk for long periods, and would preclude significant physical labor, but his service-connected disabilities would not prevent sitting and lifting objects of low weight, especially with taking short breaks to reposition the body, and he does not have any service-connected auditory or visual limitations. See Ray, 31?Vet. App.?58. Given the forgoing, the Board finds that the persuasive weight of the evidence does not show that the Veteran's service-connected disabilities render him unable to secure or maintain substantially gainful employment. Entitlement to a TDIU is denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine, but the evidence is not in approximate balance.? See Lynch v. McDonough, 21 F. 4th 776 (2021).?? DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.