Citation Nr: 18148007 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 13-22 671 DATE: November 6, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), on an extraschedular basis prior to February 19, 2014 is denied. Entitlement to an extraschedular TDIU for the periods of September 1, 2014 through April 21, 2015, and from June 1, 2015 to February 1, 2016 is granted. FINDINGS OF FACT 1. The Veteran was employed through February 18, 2014, and was not unemployable due to her service-connected disabilities during the period prior to February 19, 2014. 2. For the periods from February 19, 2014 through August 31, 2014, and from April 22, 2015 through May 31, 2015, the Veteran was granted a 100 percent evaluation under 38 C.F.R. § 4.30. 3. During periods from September 1, 2014 through April 21, 2015, and from June 1, 2015 to February 1, 2016, the Veteran’s service-connected disabilities rendered it impossible for the average person to follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to total disability rating based on individual unemployability (TDIU), on an extraschedular basis prior to February 19, 2014 have not been met. 38 C.F.R. §§ 3.340(a)(1), 3.341, 4.15, 4.16, 4.19. 2. The issue of entitlement to a TDIU for the periods from February 19, 2014 through August 31, 2014, and from April 22, 2015 through May 31, 2015 was mooted by the grant of a 100 percent evaluation under 38 C.F.R. § 4.30. 3. The criteria for entitlement to a TDIU on an extraschedular basis for the periods from September 1, 2014 through April 21, 2015, and from June 1, 2015 to February 1, 2016 are met. 38 C.F.R. §§ 3.340(a)(1), 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) in the United States Army from July to December 2007. She served in the Army National Guard until July 2010. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee in which the RO denied entitlement to a total disability rating based on individual unemployability (TDIU). A videoconference hearing was held in March 2015 before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is of record. In a letter dated in September 2018, the Veteran was notified that the VLJ who conducted the March 2015 Board hearing was no longer employed by the Board and that the Veteran had the right to another Board hearing. The Veteran was given 30 days to respond. As no response was received, the Veteran is viewed to have waived her right to another Board hearing. In March 2016, the RO granted entitlement to service connection for additional disabilities from February 1, 2016. The RO also granted entitlement to TDIU effective February 1, 2016. In August 2016, the Board remanded the issue of TDIU prior to February 1, 2016 to the RO for further development and to refer the claim to the Director of Compensation Service to consider entitlement to TDIU for any periods in which the Veteran did not meet the percentage criteria for that benefit. See 38 C.F.R. § 4.16(b). In October 2017, the Board remanded the matter again for compliance with the August 2016 instructions to forward the claim to the Director for adjudication. The prior remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). The claim may be adjudicated by the Board. Entitlement to total disability rating based on individual unemployability (TDIU) on an extraschedular basis is denied as to periods prior to February 19, 2014, and is granted as to periods from September 1, 2014 through April 21, 2015, and from June 1, 2015 to February 1, 2016. The Veteran seeks a TDIU for periods prior to February 1, 2016. A TDIU may be assigned 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). 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. “Substantially gainful employment” is that employment, “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Here, the Veteran worked as a server from October 2006 through March 2008; she worked for a legal services provider in a call center from February 2011 through November 2011; she worked as a cashier from May 2012 through October 2012; she worked for a photography business in an unspecified title from August 2012 through January 2013; as a delivery driver for a restaurant from January 2013 through February 2014; and as a shift manager in training for a restaurant from January 2014 through February 2014. See Social Security Administration Work History Report; October 2014 Application for Increased Compensation based on Unemployability. The Veteran was separated from her last job on February 18, 2014 due to a left ankle trimalleolar fracture, an injury that was subsequently determined to be service-connected. See April 2015 Counseling Record. Careful review of the record reveals no persuasive evidence of record supporting any finding that the Veteran was unemployable for any period prior to February 19, 2014. The most probative evidence of record as to this finding is the fact that the Veteran was employed and working during this period. Her employment during this period does not appear to have been protected employment. It is accordingly determined that the Veteran was not unemployable prior to February 19, 2014. However, there remains the question as to whether the Veteran was unemployable during the period thereafter until she was ultimately granted a TDIU, effective February 1, 2016. The periods of February 19, 2014 through August 31, 2014 and April 22, 2015 through May 31, 2015 were granted a100 percent evaluation under 38 C.F.R. § 4.30; entitlement to a TDIU for these periods is thus a moot point. Accordingly, it remains for the Board to review if the Veteran was properly denied a TDIU during the periods from September 1, 2014 through April 21, 2015, and from June 1, 2015 through January 31, 2016. During these periods, the Veteran was evaluated at a combined 50 percent rating for the service connected conditions of closed stress fracture of the left metatarsal bones (40 percent), fibromyalgia associated with lumbar strain with degenerative disc disease with disc bulges (10 percent), lumbar strain with degenerative disc disease with disc bulges (0 percent). Service connection for bilateral lower extremity neuropathy, as secondary to the lumbar spine condition was granted effective February 1, 2016. After the fractured ankle, the Veteran was started on methadone in September 2014 for her pain, per a VA Pain Clinic note. In an October 2014 VA pharmacotherapy note, she reported a pain level of 6 out of 10, primarily due to her ankle. She was noted to walk into the exam room with significantly less distress than previous, and was noted to be able to exert direct pressure on her ankle indicating significantly reduced hypersensitivity from previous. She was noted to have considerable less ankle swelling. She reported stiffness when sitting or standing too long. She reported being able to get out of her chair and off her crutches, and walk around on her own to do some household chores. She was noted to have pain and to be sore if standing too long, but was noted to be able to cook dinner for her family on the stove the prior day. An October 2014 Buddy Statement from the Veteran’s husband reported that the Veteran walks constantly with a severe limp, and relies on a manual wheelchair for outings. She was reported to have some days better than others, to require help with routines such as bathing and dressing herself, was noted to have difficulty sleeping and to be sleepy as a result of her medication, frequently falling asleep. An October 2014 Buddy Statement from S.L. indicated that when the Veteran was asked for help looking for a car while driving around as part of a repossession business, instead of looking for cars, the Veteran fell asleep. She was noted to be pushed around in a manual wheelchair for outings to the mall or downtown. In February 2015, the Veteran reported that the methadone she was taking for her back and foot pain made her pain levels tolerable, and reported the medications were working well. She underwent surgery in April 2015. An April 2015 VA Physical before the surgery noted the Veteran was taking methadone, Sulindac, Metformin, Albuterol, Cetirizine, Cholecalciferol, Cyanocobalamin, and Synthroid. The Veteran was noted to be well appearing and in no acute distress. She was noted to travel on a motorized scooter, though she could ambulate without assistive devices. A September 2014 VA examination of the Veteran’s left ankle noted that the functional impact of the Veteran’s ankle conditions caused her problems with ambulation; that she had problems with prolonged walking beyond a few blocks, and that she was unable to stand for prolonged periods, and used a wheelchair for ambulation. An October 2014 Application for Increased Compensation based on Unemployability indicated the Veteran had completed three years of college, and was attending college. A May 2015 VA treatment note indicated the Veteran completed an Associate’s degree as a paralegal, and was scheduled to complete a Bachelor’s degree in law and legal process on December 2015, and noted that she was performing well. In the March 2015 Board hearing, the Veteran testified she was in a wheelchair from February 2014 until December 2014, and in an electric wheelchair thereafter. She testified that standing for long periods of time hurt even before she broke her ankle, and when she was a manger, her bosses had to accommodate her sitting. She testified that she could not drive while taking the methadone, and that she was frequently sleepy and woke late. She testified that she attended full-time, but the schooling was online. An April 2015 VA Anesthesia preop evaluation noted that the Veteran could perform activities of daily living, but could not was one block at an average pace, could not walk up and down two flights of stairs, perform moderate physical activity, or vigorous exercise. An April 2015 Vocational Counseling Record noted the Veteran’s service-connected and non-service connected disabilities, her work history, and her education, including attendance at Kaplan. The counselor opined that her service-connected disabilities are the cause for the limitation from working as she is unable to obtain, maintain, or prepare for specific employment in the labor market that does not aggravate her service-connected disabilities. The counselor noted the Veteran’s chronic pain, long period of unemployment severity of her disability, and her methadone use. She was noted to use a scooter, a cane, an ankle brace, and a walker, and to have a three-times per week home health aide. At the time of the assessment, the non-service connected disabilities included fibromyalgia, degenerative disc changes and bulging discs in the lower back, hemorrhoids with anal fissure, surgical scar on the left foot, and bilateral lower extremity peripheral neuropathy. The Veteran’s fibromyalgia, lumbar spine condition, surgical scar, and bilateral lower extremity neuropathy were subsequently granted service connection. A December 2016 VA examination for fibromyalgia noted that the symptoms of fibromyalgia caused by the aggravation of service connected disabilities include the widespread episodic musculoskeletal pain, that is present more than one third of the time. The clinician opined that such pain was likely to have had its onset in early 2014, as more frequent pain clinic follow-up visits started around that time. An Advisory Opinion by the Director, uploaded to the file in December 2017, noted: VA examinations showed the Veteran reporting a history of ankle injury. In September 2014 objective findings showed a moderate condition with a painful range of motion at 20 degrees dorsiflexion and 10 plantar with incoordination, and interference with standing. The condition was deemed not equally well served by amputation. Occupational Impact was that the Veteran has difficulty ambulating uses wheelchair and unable to stand for prolonged periods. Social Security Administration records note the Veteran is unable to work due to the service connected ankle disability and a non-service related mental health disorder. Vocational Rehabilitation Records denote the Veteran was found to have a serious employment handicap and it was not reasonably feasible to achieve a vocational goal. Based on the totality of evidence of record, extra-schedular entitlement to TDIU is not shown due to the left ankle condition, nor was there was any collective impact, or that the rating schedule was shown to be inadequate at any time (3.321). The Veteran’s ankle condition was shown to make physical activity difficult not impossible. The Veteran is not shown to be unemployable under any circumstances as sedentary occupational activity has not been ruled out. There are several non-service-connected disabilities identified, which have not been differentiated from service-connected conditions (Cathell v. Brown). Therefore, since no service-connected disabilities are identified individually or collectively, as the sole reason for the Veteran’s unemployability (Blackburn v. Brown) TDIU is not warranted on an extra-schedular basis. Some factors were not discussed in the Director’s review, such as the required assistance with activities of daily living, the impacts of methadone on attendance and productivity, and the nature of the Veteran’s employment history and educational and vocational attainment. In contrast, the findings of the April 2015 Vocational Counseling Record appear to have been thorough, with consideration of the specifics of the Veteran’s case, and her required assistance with activities of daily living. While the Veteran could, in theory, find someone to provide transportation to and from work, and that she could possible perform sedentary work, a significant factor is that her methadone treatment would adversely impact her attendance and ability to focus significantly. After careful review, the evidence of record is at least in relative equipoise as to whether the functional impact of the Veteran’s service-connected disabilities rendered her unemployable during the periods the periods from September 1, 2014 through April 21, 2015, and from June 1, 2015 through January 31, 2016. Accordingly, an extraschedular TDIU under 38 C.F.R. § 4.16(b) is warranted and granted for these periods. As noted previously, the evidence preponderates against a finding of unemployability for prior periods. Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel