Citation Nr: 20037331 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 14-07 276A DATE: June 2, 2020 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected right ankle disability does not meet the minimum threshold for the award of schedular TDIU, and the evidence does not show that his service-connected disability alone renders him unable to obtain or maintain 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, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to September 1978. In July 2019, the Board of Veterans’ Appeals (Board) remanded the issue of entitlement to a TDIU for additional development. The case has been returned to the Board and the Board finds that there has been substantial compliance with the its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a total disability rating based upon individual unemployability (TDIU). Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. §§ 3.341, 4.19. If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. 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(b). The rating boards are required to submit to the Director, Compensation Service, for extraschedular 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). Id. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Currently, the Veteran is service connected for status post avulsion fracture, right distal fibula at 20 percent (right ankle disability). He is thus not eligible for entitlement to a TDIU on a schedular basis because there is no single disability rated 60 percent, or combination of ratings equal to 70 percent or more. As the Veteran does not meet the schedular criteria, the Board will next consider whether referral for an extraschedular TDIU is warranted. If the schedular TDIU percentages are not met, the Veteran's claim may be referred to the Director of Compensation Service for an extraschedular rating when the evidence of record shows that 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 TDIU on this basis in the first instance. Here, May 2011 and December 2015 VA examination reports reflect that the Veteran’s right ankle disability has impacted his ability to work, as the Veteran has difficulty walking even a few yards or standing for more than a few minutes. The December 2015 VA examiner noted the Veteran’s ability to work was affected due to limited mobility, in part, due to the service-connected right ankle disability, complicated by his massive obesity. The Veteran also receives Social Security Administration benefits, in part due to his right ankle disability. In his Application for Compensation Based on Unemployability, the Veteran reported that he retired in August 2008 and prior to his retirement, he worked as a cement finisher. He reported some high school education. Of note, the Veteran listed standing, walking, blood pressure, weight, sleep disturbance, and bipolar disorder as preventing him from securing or maintaining a substantially gainful occupation. He did not specifically list his service-connected right ankle disability, although the Board acknowledges that standing and walking are likely related. The Veteran also submitted two lay statements from a friend describing the severity of his disabilities to include witnessing him falling, mental issues including depression and a temper, and obesity. While the Board finds these statements to be competent and compelling as to the Veteran’s overall disability picture, it does not find the statements to be probative as to the Veteran’s right ankle disability alone and its effects on his unemployability. For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which takes the claimant's case outside the norm of such veteran. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A compensable rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. Id. The Board notes that the Veteran receives ongoing medical treatment for a number of non-service-connected disabilities, including neck pain, arthritis of the spine, degenerative joint disease of both knees, left ankle pain, bipolar disorder, and massive obesity that necessitates the use of a wheelchair. After review of the Veteran’s VA medical records, the Board finds that there is no evidence to demonstrate that the Veteran’s right ankle disability alone has rendered him unemployable. Further, the evidence does not present an exceptional or unusual disability picture which would render the current rating schedule inadequate. Given the above, the preponderance of the evidence does not show that the Veteran's service-connected right ankle disability precludes him from participating in all forms of regular substantially gainful employment. Rather, there are other nonservice-connected disabilities that impact the Veteran's employability. Referral to the Director of the Compensation Service for extraschedular consideration is not warranted. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, 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.