Citation Nr: 1751605 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 09-38 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual employability (TDIU) as a result of service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD P. Meehan, Associate Counsel INTRODUCTION The appellant is a veteran (the Veteran) who had active duty service from May 1974 to May 1978. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision from the VA regional office (RO), in Montgomery Alabama. The appellant did not report for a Board hearing that was scheduled to be conducted at the RO on September 1, 2017. Because the appellant has not submitted good cause for his failure to appear, the request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2016) (failure to appear for a scheduled hearing treated as withdrawal of request). The Board has limited the discussion below to the relevant evidence required to support its findings of fact(s) and conclusion(s) of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). FINDING OF FACT The evidence of record does not show that the Veteran is unable to secure or follow substantially gainful employment as a result of service-connected disabilities CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran is currently service-connected for lower extremity bilateral residuals of frostbite, rated at 30 percent each foot since April 3, 2001; mild flexion deformity, right little finger rated at 0 percent from November 30, 1987, and 10 percent from October 7, 2009. The total combined disability rating of 60 percent is effective from April 3, 2001. Accordingly, eligibility for schedular TDIU has been met as of April 3, 2001, because disabilities of one or both lower extremities, including the bilateral factor, are to be considered one disability under the regulation. See 38 C.F.R. § 4.16(a)(1). A review of the Veteran's claims file indicates that the Veteran filed for Social Security (SSA) benefits in relation to a September 1, 1998, back and neck injury that he incurred while working. In January 2000, SSA made a determination that the Veteran was disabled and eligible for associated benefits effective the date of the injury. Private medical records indicate that the Veteran twisted his left ankle in a pothole in October 2003 and ultimately fractured it due to his difficulty walking because of frost-bitten feet. He claimed he "fell back," but the injury cause was specifically recorded in his private medical records as a twist, and inversion injury, as opposed to a fall. In an October 2005 VA medical entry, the Veteran reported that he engages in "yard work," and in November 2005 VA medical entry he stated that he walks in his yard "as much as I can." The Veteran initially filed a claim for TDIU in March 2006. He asserted that disabilities to his feet and back render him unable to secure substantially gainful employment. Multiple VA medical treatment entries in April 2006 indicated that the Veteran was ambulatory and able to walk unassisted. An April 2006 muskoskeletal entry also indicated that the Veteran had normal gait, and that his deep tendon reflexes were hyperactive, but without clonus. A VA examination was afforded to the Veteran in July 2006. The examining physician opined: At this time, this veteran's current service connected conditions would not impact him obtaining any sedentary work. However, he would have difficulty having to do any type of physical work that requires him to be on his feet because of the cold injury of his feet. This veteran is nonservice connected for a back condition for which he is on Social Security disability. This is what would prevent him from any physical or sedentary employment because he cannot tolerate any sitting or physical activity. However this is not service connected and therefore as per regional office is not to be taken into consideration with this opinion. Private medical records indicate the Veteran reported that he fell 10 feet off a ladder on August 11, 2007. X-rays were conducted in August 2007, and showed multiple fractures to his left lower foot. In April 2008, the Veteran underwent left subtalar fusion surgery due to persistent pain in relation to the injury. A medical note on the date of the procedure indicated that "[the Veteran] should be able to push off and it should help decrease his pain because he will not have any motion in that arthritic joint." In June 2009, the Veteran testified before a Decision Review Officer along with his spouse. The Veteran noted that he stopped working after his back injury. His wife testified about his broken foot, and that an outside doctor permanently fused his foot, ultimately rendering it unable to turn. The Veteran asserted that he could only walk 20 to 30 feet at most, and that he could not bend over. He also noted the presence of a right foot drop. In June 2010, another VA examination was afforded to the Veteran to examine the current severity of his service-connected disabilities. As for the right finger disability, the examiner diagnosed previous fracture right fifth metacarpal bony density and flexion deformity, fifth PIP joint. The examiner noted that the Veteran was not employed, so the effects on his usual occupation could not be shown. However, the examiner reported moderate effects on chores, exercise, and shopping, inability to play sports, mild effects on dressing and grooming, and no effects on recreation, feeding, bathing, and toileting. In regard to the Veteran's bilateral feet disability, the examiner diagnosed frostbite right and left foot with residuals. The examiner reported that this has severe effects on chores, shopping, exercise, and traveling, prevents sports, and has moderate effects on recreation, bathing, toileting, and grooming. The Veteran's representative submitted an Informal Hearing Presentation (IHP) in September 2017. The IHP noted that the Veteran was requesting extraschedular consideration based on the Veteran's specific case. As noted previously, the Veteran was indeed eligible for TDIU as of April 03, 2001, due to a single disability rating of 60 percent for bilateral lower extremity residuals of frostbite. Therefore the Board must address entitlement to schedular TDIU is applicable. As an initial matter, since the Veteran is indeed eligible for schedular TDIU, extraschedular consideration is inapplicable in this case because it is only relevant when the Veteran does not meet the schedular criteria. Here, there is no doubt that the Veteran is severely disabled and his disabilities have a significant impact on his ability to maintain gainful employment. The question, however, is not simply whether his disabilities prevent him from employment, but whether his service-connected disabilities prevent him from employment. In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court of Appeals for Veterans Claims (Court) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedential decision, the VA General Counsel opined that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. After a review of all the evidence, the Board finds that the severity of the Veteran's service-connected disabilities do not prevent him from substantially gainful employment. Service treatment records place the date that the Veteran suffered his frostbite injury in October 1975, after serving in the field for an extended period of time with cold feet. On his SSI application for benefits, the Veteran was requested to list the kinds of jobs he had for the past fifteen years. Between April 1988 and September 1997, the Veteran reported working a number of physical jobs including, roofing, installing flooring, and loading trucks. This self-reported work history clearly illustrates that the Veteran was able to consistently engage in gainful employment for almost a decade, despite enduring a bilateral frostbite disability of the feet. However, the Board acknowledges that the Veteran was first granted increased for his service-connected feet to 30 percent each, for a 60 percent rating combined total rating, effective April 2001. The record further reveals the Veteran suffered a severe back injury while lifting at work in October 1997, and it was this non-service related injury that unequivocally rendered him unable to work and initiated eligibility for SSI benefits. At the June 2009 RO hearing, as discussed above, the Veteran even testified that he stopped working "[b]ack when I hurt my back," when asked when last he was employed. In addition, the Veteran and his wife strictly discussed how his broken feet and subsequent fusion surgery for his second fracture of his left foot had greatly impacted his mobility. At no time however, did the Veteran or his wife indicate that any of the Veteran's mobility symptoms were related to bilateral frostbite of the lower extremities. The evidence of record indicates that despite an increased combined rating of 60 percent for his bilateral lower extremity disability, the Veteran was still able to ambulate in a meaningful manner. As noted above, the Veteran reported in October and November 2005 (around four years after entitlement to a combined 60 percent rating), that he walks in his yard for exercise and performs yard work. A VA medical report in April 2006 (around five years after entitlement to a 60 percent combined rating), noted the Veteran was ambulatory and could walk unassisted. Finally, he was still able to climb a ladder as late as August 2007 (around 6 years after entitlement to a 60 percent combined rating), even though he argues he was unable to engage in physical work. In this case, the evidence strongly suggests that it was the nonservice-connected back disability along with the nonservice-connected fracture and the left subtalar fusion surgery, that left the Veteran unable to ambulate and thus unable to work; not his service-connected bilateral frostbite disability. As described in the 2009 RO hearing, the left foot joint was left seriously immobilized after the fusion surgery. The Board recognizes the severity of the Veteran's non-service connected disabilities, including the neck, back, and foot, but is unable to consider these disabilities when adjudicating the claim for TDIU. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56. Accordingly, entitlement to TDIU is denied. ORDER The appeal is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs