Citation Nr: 21000718 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 20-19 338 DATE: January 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), exclusive of periods of temporary total evaluation, is granted. FINDING OF FACT When considered together, the Veteran’s service-connected disabilities prevent him from securing and following substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU, exclusive of periods of temporary total evaluation, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1978 to April 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision by the Department of Veterans Affairs (VA). As an initial matter, the Board notes that the Veteran appealed an October 2018 rating decision in his October 2018 notice of disagreement (NOD). However, the NOD was received within one year of an October 2017 rating decision denying entitlement to TDIU (mailed on October 30, 2017). Thus, to provide the Veteran the greatest possible benefit, the Board has interpreted the October 2018 NOD to be appealing the October 2017 rating decision. The Veteran’s representative asserts without explanation that the Board has jurisdiction over the propriety of the discontinuance of TDIU, as adjudicated in a December 2015 rating decision. See December 2020 appellate brief. The Veteran did not appeal that decision. Because there is no NOD to the December 2015 rating decision, the Board does not have jurisdiction of that issue. Thus, the matter before the Board is limited to entitlement to TDIU. The Board notes that the Veteran requested a hearing with the Agency of Original Jurisdiction (AOJ) in July 2019. See July 2019 Report of General Information. Because the Veteran declined a Board hearing in his April 2020 substantive appeal (VA Form 9), the Board finds that the Veteran’s hearing request was withdrawn and may proceed with adjudication. In July 2020, the Veteran requested that his case be advanced on the docket based on financial need. He reported that he was homeless. See July 2020 Report of General Information. VA treatment records corroborate his report. See, e.g., September 2020 VA treatment records. As a result, the Board has granted the Veteran’s motion, and the case is advanced on the docket. See 38 C.F.R. § 20.800. Entitlement to TDIU. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the Veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). For the purpose of determining entitlement to a schedular TDIU, disabilities of one or both lower extremities are considered as one disability, including the bilateral factor. Id. The Veteran qualifies for schedular TDIU because he has dermatophytosis of the feet, rated at 30 percent, and bilateral foot metatarsalgia, hallux rigidus, and arthritis, with each foot individually rated at 30 percent. Because these disabilities of the lower extremities count as one disability for TDIU purposes, the Veteran meets the schedular criteria. The Veteran has a General Educational Development (GED) certificate and last worked in 1999 as a mail clerk. He held that job for over a decade. See, e.g., June 2018 VA Form 21-8940. In June 2017, the Veteran’s treating physician, Dr. H. Gottlieb, DPM, opined that he had chronically painful feet resistant to conservative and surgical treatment. He was unable to walk more then 50 feet without taking weight off of his feet. He was prevented from carrying more than five pounds, and he was limited in his ability to climb up or down stairs. His problems interfered with his ability to use ladders and stepstools, bend at the waist, or lift objects. The physician opined that the feet conditions were “permanently disabling.” In January 2018 Dr. Gottlieb opined that the Veteran had intractable and painful deformities to his feet. The deformities placed severe restrictions on his ability to stand, walk, climb stairs, and lift and carry objects. VA examiners mostly state that the Veteran’s service-connected foot disabilities do not impact his ability to work. See, e.g., November 2018 VA examinations. However, it is clear from Dr. Gottlieb’s letters that the Veteran’s service-connected feet disabilities impact his ability to stand and walk, at the very least. Moreover, April 2019 and March 2020 VA foot examiners note the impact on his ability to ambulate and stand. As a result, the VA examiners’ opinions that the disabilities have no impact on the Veteran’s ability to work are assigned no probative weight. In December 2020, a private vocational expert opined that the Veteran’s service-connected disabilities prevent him from securing and following substantially gainful occupation, to include unskilled sedentary employment. The expert described sedentary work as that including exerting up to 10 pounds of force occasionally and sitting most of the time, but such work may involve some walking or standing for brief periods of time. The Veteran was extremely limited in his ability to stand or walk for more than five to ten minutes at a time, and the pain and swelling in his feet resulted in him needing to elevate his legs throughout the day. His need to change positions as frequently as every five to ten minutes would lead to excessive time off-task and the Veteran would be unable to concentrate due to pain, which would significantly reduce pace and productivity. The December 2020 vocational expert also discussed that the need to take breaks to elevate the Veteran’s legs would not be tolerated in competitive employment, and the need to constantly use an assistive device, whether cane, walker, or motorized scooter, would be work preclusive. Given the need to constantly use one or both hands to move with a cane or walker, the Veteran would not have the ability to use his bilateral upper extremities for lifting and carrying up to 10 pounds as required of even sedentary employment. Although the December 2020 vocational expert discusses the effects of the Veteran’s non-service-connected mental health condition, the Board does not find such discussion preclusive. Indeed, the expert appears to describe the Veteran’s mental health as “further impact[ing] his employability,” (emphasis added) rather than the basis of unemployability and noted that she was aware that his mental health was not service-connected. The expert discusses the Veteran’s service-connected disabilities in enough detail that adequately communicates that she believed his service-connected disabilities alone would preclude employment. As a result, the Board assigns the opinion significant probative weight. After considering the Veteran’s work history as a mail clerk, high school education, and the opinion by the December 2020 vocational expert, the Board finds that the probative evidence reflects that the Veteran’s service-connected disabilities prevent him from securing and following substantially gainful occupation. Thus, TDIU is warranted and the claim is granted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.