Citation Nr: 21062440 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 13-30 972A DATE: October 7, 2021 ORDER A total disability rating based on individual unemployability (TDIU) prior to May 1, 2013, to include on an extra-schedular basis, is denied. FINDING OF FACT Prior to May 1, 2013, the Veteran's service-connected bilateral foot disabilities were not shown to have not precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU prior to May 1, 2013, to include on an extra-schedular basis, 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 in the U.S. Army from March 1966 to March 1969. The matter is on appeal from a June 2012 rating decision. The appeal was previously remanded by the Board for further development on two separate occasions. The issue was remanded in October 2017 for referral to the Director of Compensation Service for extra-schedular consideration, and the issue was remanded in October 2018 due to being inextricably intertwined with the issue of service connection for a depressive disorder. During the pendency of the appeal, a December 2019 rating decision granted a TDIU effective May 1, 2013, the date in which the Veteran's service connection for his depressive disorder became effective. That decision represented a partial grant of the benefits sought on appeal, pertaining to the issue of a TDIU, as the Veteran was not granted the TDIU for the entire period on appeal. Thus, the issue of a TDIU remains before the Board. See AB v. Brown, 6 Vet. App. 35, 39. In a July 2020 decision, the Board denied the Veteran entitlement to a TDIU prior to May 1, 2013, to include on an extra-schedular basis. The Veteran appealed the July 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court or CAVC). In April 2021 the Court issued a Joint Motion for Remand (JMR), in which the July 2020 Board decision was vacated and remanded for further development. This decision is being written in accordance with the April 2021 JMR. TDIU Prior to May 1, 2013 On June 22, 2009, the Veteran submitted an Income-Net Worth and Employment Statement in support of his claim for TDIU, which raised entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). He reported that he had last worked on March 17, 2009 as a drug and alcohol counselor/case manager for Veterans. In October 2009, VA requested the Veteran to fill out and return an Application for Increased Compensation Based on Unemployability. The Veteran filed the formal claim for a TDIU in July 2010, in which he asserted that he was unemployable due to his service-connected bilateral foot disabilities. He noted that he had last worked on March 17, 2009 as a drug and alcohol counselor. The Veteran remarked that walking in shoes was extremely painful, and that while his feet hurt less without shoes, they did still hurt. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. The Veteran is considered unemployable if found that his or her service-connected disabilities result in being unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court interpreted the phrase "unable to secure and follow a substantially gainful occupation" to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, and the noneconomic component requires more than determining the presence or absence of employment producing income exceeding any particular threshold. The ultimate inquiry on the Veteran's ability to secure or follow that type of employment. The Court also provided that to determine whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to the Veteran's history, education, skill, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the Veteran's limitations of lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Also, for consideration is whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the Veteran's limitations concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. While not a checklist, these are potentially relevant factors for consideration if raised by the evidence. Prior to May 1, 2013, the Veteran was only service-connected for a series bilateral foot disabilities. The ratings for these disabilities were not constant, and therefore present multiple time periods for the period on appeal with differing combined evaluations. For the period on appeal prior to June 22, 2009, the Veteran's bilateral foot disabilities combined to an evaluation of 50 percent or less. From June 22, 2009 through December 31, 2012, the Veteran had a combined evaluation of 60 percent for his bilateral foot disabilities. From January 1, 2013 to April 30, 2013, the Veteran had a combined evaluation of 50 percent for his bilateral foot disabilities. Therefore, by taking the bilateral foot disabilities as one disability for the period beginning June 22, 2009 through December 31, 2012, the Veteran had a 60 percent rating for one disability, and met the schedular percentage criteria for a TDIU. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. However, for the periods prior to June 22, 2009 and from January 1, 2013 to April 30, 2013, the Veteran's service-connected disabilities only totaled to a 50 percent rating for one disability, and therefore did not meet the rating criteria for a schedular TDIU. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. The Board notes that in rare instances a case may be referred to the Director of Compensation for extra-schedular TDIU consideration when the evidence suggests that a Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). The primary inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). As previously noted, an October 2017 Board decision referred the issue of a TDIU to the Director of Compensation Service for extra-schedular consideration. In the October 2017 Board decision, the Board did not specifically analyze and weigh the evidence of employability prior to remanding the issue of an extra-schedular TDIU for referral to the Director of Compensation and Pension. Rather, the Board found that the Veteran had not worked for several years prior to 2013, and that some of the medical evidence suggested that he could not work at least in part because of his service-connected disabilities. Thus, the Board remanded in accordance with the principle that the Board should maximize possibility that a Veteran receives a VA benefit. This action provided the Veteran with the benefit of another proverbial bite of the apple, such that a second party was able to consider the evidence in addition to the Board; and, if the Director found that service-connected disabilities prevented the Veteran from obtaining or maintaining substantially gainful employment prior to May 2013, then the claim would have been granted. However, the Director of Compensation Service found that entitlement to a TDIU on an extra-schedular basis was not warranted for the time period from April 19, 2007 to June 21, 2009, or for the time period from January 1, 2013 to January 5, 2014. The Director of Compensation Service noted that the Veteran had been granted nonservice-connected pension effective June 22, 2009 due to multiple disabilities that were not related to service that included the neck, radiculopathies of both upper extremities, diabetes mellitus, depression, and arthritis of both shoulders. It was found that the one medical opinion of record that indicated that the Veteran's service-connected bilateral foot disabilities had prevented him from working was not supported by the rest of the objective medical evidence of record. Now, because the Director has not found the criteria for an extra-schedular TDIU to have been met, the Board undertakes the below analysis. Had the Board simply analyzed the evidence previously, and not remanded the claim, the claim would have been denied sooner, and the Veteran would have lost the opportunity for a second party to find evidence supporting a grant of benefits. Where the Board of Veterans' Appeals refers a claim to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b), and the Director denies an extraschedular rating, the Board's earlier decision to refer the claim does not automatically bind the Board when it later decides whether to award an extra-schedular rating. See Ray v. Wilkie, 31 Vet. App. 58, 61 (2019). However, the Board must explain why the factual finding it made at the referral stage came out differently at the review stage. The Board shall discuss and weigh the evidence in the below decision, while providing an explanation for why the evidence of record does not support a grant of the benefits sought. A review of the Veteran's record reflects that he underwent three VA examinations prior to May 1, 2013 in which the VA examiners opined on the Veteran's employability. In a July 2009 VA examination, the examiner reported that the Veteran's bilateral foot disabilities did not affect his usual occupation since he was currently not employed, however, the examiner also stated that the Veteran's bilateral foot disabilities effected the Veteran's daily activities in that he could not stand or walk for a long time. The examiner from a January 2010 VA examination, reported that the Veteran's bilateral foot disabilities created pain and difficulty for him while standing or walking for a period of time. The examiner noted that while the Veteran was unable to walk or stand for a period of time, that the Veteran was able to work in sedentary desk jobs. To this end, the Board takes sedentary employment to have the common meaning in society of non-physical, white collar, office-type work. After a November 2011 VA examination, the examiner reported that due to the Veteran's bilateral foot disabilities he experienced pain when walking less than 100 yards, he no longer did yardwork, he no longer stood on ladders, he limited shopping and driving due to pain, and he had fallen when stepping on uneven ground. The examiner noted that the Veteran would take his shoes off while sitting at his desk at work to try and relieve his foot pain. The examiner found that the Veteran would be unable to engage in physical employment requiring walking or standing due to his foot pain. For sedentary employment, the examiner reported that the Veteran would need to be permitted movement of his legs from one position to another to avoid cramping. In the Veteran's Notice of Disagreement submitted in July 2012, he reported that due to his service-connected bilateral foot disabilities he experienced severe problems standing for any period of time, and severe difficulty in sitting for any period of time as his feet would go to sleep. He also noted that walking for more than a few steps resulted in an increase of severe pain, with numbness if he continued to walk. A review of the Veteran's VA treatment records reflects that the Veteran's VA primary care provider wrote an opinion in August 2012, in which the physician reported that the Veteran had long standing bilateral foot pain with a diagnosis of intractable plantar keratomas, which kept the Veteran from being able to walk or stand for very long. The examiner noted that the Veteran had recently been diagnosed with cervical spine stenosis/radiculopathy, which was causing pain and a lack of mobility in the Veteran's neck with pain and numbness in his arms and hands. The Veteran was also noted to have a diagnosis of right shoulder rotator cuff tear with significant pain in the shoulder. The physician found that due to all of the Veteran's problems he was unable to work and could not be gainfully employed. The Veteran submitted a medical opinion in May 2013 from his VA primary care provider, which was dated September 2012. The physician reported that he had been the Veteran's primary care provider for two years, and noted that the Veteran had stopped working in 2009 due to bilateral foot pain and an inability to wear shoes at work. The physician reported that the Veteran's foot pain would become unmanageable when he was required to stand in one place for more than ten minutes or to walk more than 300 feet. The physician found that the Veteran was unable to be gainfully employed due to his chronic foot pain. An additional opinion from the Veteran's VA primary care provider was submitted in November 2013, in which the physician reported that the Veteran was unable to work even in a sedentary job due to his pain in his feet, back, and neck. It was noted that an employer would have to make exceptional accommodations for the Veteran to be able to function even in part time employment. In a personal statement submitted by the Veteran in May 2013, the Veteran reported that due to his bilateral foot disabilities he was unable to walk any distance, stand for any period of time, and that he preferred to stay off his feet all the time. However, he noted that even when he is sitting the pain could be unbearable. He described that when he walks to the end of his driveway, he has to remove his shoes and put his feet up because the pain is so intense. He noted that his need to take his shoes off and put his feet up was a part of the reason he had been laid off in 2009, because when he would sit down in meetings, he would remove his shoes so as to provide some relief. He relayed that due to the surgeries that he has had on his feet over the years he is missing half of both of his little toes, which also effects his balance. At a hearing before the Board in May 2017, the Veteran and his spouse testified that due to his bilateral foot disabilities the Veteran is unable to wear shoes. The Veteran relayed that his feet hurt all the time, and that he gets no comfort or relaxation due to the pain. His spouse reported that when the Veteran sits for any length of time, he takes his shoes off and props his feet up. She noted that in the Veteran's former work he would attend meetings and within 10 to 15 minutes he would take his shoes off and prop his feet up, and that he had been allowed to do this because his employers knew him so well and he did such a good job at his work. However, she noted that the Veteran had been forced into retirement in 2010. She relayed that the Veteran could not ride in a car for a long period of time without stopping and getting out to prop his feet up. If the Veteran sat and watched television, she noted that his feet were not on the floor. Pertaining to his work history, the Veteran reported that he last worked as a drug and alcohol counselor with Veterans, and prior to that he had worked in catering, security, and construction. As to education, the Veteran noted that he had finished high school and had attended one and a half years of college. The Veteran also reported that he did not receive social security for disability. Pertaining to the Veteran's occupational and educational history, the record reflects that the Veteran has worked as a limousine driver, a security guard, self-employed in a catering business, and as a drug and alcohol counselor/case manager. As previously stated, the Veteran last worked as a drug and alcohol counselor until March 2009, when he was laid off due to the loss of a grant that funded the program in which the Veteran worked. The Veteran completed high school and attended college for a year and a half where he studied administration. In addition, the Veteran has received training pertaining to his work with drug and alcohol counseling. Based upon the totality of the foregoing information, the Board finds that prior to May 1, 2013, the Veteran has not been shown to be unable to secure or follow a substantially gainful occupation as a result of his service-connected bilateral foot disabilities. Prior to May 1, 2013, the opinions from three VA examiner's reflected that the Veteran's bilateral foot condition would not preclude him from the ability to work in at least a sedentary work position, which was consistent with his employment during the early part of his claim. The Veteran had submitted one opinion from his VA primary care provider that stated that the Veteran was unable to work due solely to his bilateral foot disabilities, however, the weight of the record outweighs this one opinion. The Board notes that the April 2021 JMR from CAVC instructed the Board to provide further explanation to the aforementioned finding upon remand. In accordance with the JMR, further explanation with weighing of the evidence is provided below. To begin, while the VA examiner's opinions showed that the Veteran's foot disabilities would impact his ability to be employed in an environment where he had to stand and walk for extended periods of time, they also showed that in a non-manual/sedentary environment where he would be able to sit and move around to reposition himself when needed he would still be able to work. The opinion from the Veteran's primary care provided submitted in May 2013 did not address the Veteran's ability to work in a non-manual labor or sedentary type of work environment where standing and walking for extended periods of time are not required. Rather, the opinion only noted the Veteran's issues with walking and standing, before concluding that the Veteran was unemployable due to his foot pain. As the opinion from the Veteran's primary care provider was limited in the aspects of the restrictions that the Veteran's bilateral foot disabilities would place on his employment, and the types of employment the Veteran would or would not be able to work in, the other three VA opinions, in addition to the other evidence of record, outweighs the opinion from the Veteran's primary care provider submitted in May 2013. In addition, the other two opinions that were provided by the Veteran's primary care provider, took into account nonservice-connected disabilities in the determination that the Veteran was unable to work. Specifically, the November 2013 opinion that directly addressed sedentary employment was based upon the Veteran's foot pain and nonservice-connected back and neck pain. In turn, if one views all of the opinions from the Veterans primary care provider in conjunction with one another, they portray a picture where only physical work requiring regular standing and walking would be impacted by the Veteran's bilateral foot disabilities. However, when additional impairments such as from the Veteran's back and neck are added to the picture, which are nonservice-connected impairments, then the Veteran's ability to perform non-manual or sedentary employment becomes impacted. The Board acknowledges that the Veteran's bilateral foot disabilities created restrictions on the types of work that he would be able to do prior to May 1, 2013, such as he would be unable to work in a physical work environment that required regular standing and walking. However, significant interference with employment is expected when a Veteran's service-connected disability rating is at the level the Veteran's was prior to the assignment of a TDIU. The record as a whole has not shown that the Veteran was unable to perform work in a non-manual labor environment due solely to his bilateral foot disabilities. Yes, some concessions might have been required, such as him being allowed to take his shoes off, put his feet up, and move his legs around as needed. However, these reasonable accommodations are not found to be so extreme as to preclude all forms of gainful employment. Rather, the Veteran continued to be employed, and was per his spouse's testimony successful in his work, until the funding for his position ran out. In addition, the Veteran's level of education and training would not hamper his ability to work in a non-manual labor environment. Instead, the Veteran's year and a half of college pertaining to administration, and training and work as a drug and alcohol counselor, would offer opportunities for non-manual labor employment. As noted above, there is an economic and non-economic component to a TDIU claim. In this instance, the Veteran successfully worked as a substance abuse counselor, despite his service-connected foot problems. His work was terminated, because funding for the position ran out, and not because the Veteran was unable to do the job. The Board has given secondary consideration to the weight of the evidence based upon the findings in the JMR from CAVC, however, ultimately the Board finds the results to be unchanged. Thus, a TDIU on either a schedular or an extra-schedular basis due solely to the Veteran's service-connected bilateral foot disabilities is not warranted prior to May 1, 2013. To the extent the Veteran was unemployable prior to May 1, 2013 due to nonservice-connected disabilities, it may be evidenced in the Veteran's grant of nonservice-connected pension from June 22, 2009, which took into account the Veteran's major depressive disorder and radiculopathies of both upper extremities. Once the Veteran became service-connected for his depressive disorder, which was effective May 1, 2013, the Veteran was granted a TDIU that became effective the same date and took into account both the Veteran's bilateral foot disabilities and his depression. Accordingly, prior to May 1, 2013, a TDIU on either a schedular or extra-schedular basis is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.