Citation Nr: 21063139 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-23 653 DATE: October 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment consistent with his level of education, prior work history, and training. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis are not met. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served with the Air Force National Guard, with periods of active duty for training from April 1963 to August 1963, in July 1964, and June 1966. TDIU As a preliminary matter, the Board notes that a January 2021 Board decision found that the record raised the issue of extraschedular TDIU; at no point did the Veteran ever contend entitlement to extraschedular TDIU. Furthermore, despite referring for extraschedular consideration, the Board never made a finding that the record reflected that the Veteran's left foot disabilities precluded substantially gainful employment. A TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). The central question is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability," not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. If a claimant does not meet the threshold criteria, entitlement to a TDIU still may be granted, instead, on an extra-schedular basis under § 4.16(b). This additional subpart of this governing VA regulation indicates "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." Id. (emphasis added). 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 all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service (Director) for extraschedular consideration. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). As noted, the January 2021 Board remand requested the AOJ refer the Veteran's claim to the Director for consideration of whether a TDIU was warranted on an extraschedular basis. Such was accomplished and an Advisory Opinion denying entitlement to extraschedular TDIU was issued by the Director in September 2021. As a general matter, the Board is not bound by the Director's Advisory Opinion findings. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Board is also not bound by the prior remand directives to refer the matter for Director review. Ray, 31 Vet. App. at 58 (holding that the Board's referral decision under 38 C.F.R. § 4.16(b) does not require the Board to award an extraschedular TDIU). In Ray, the Court recognized that a referral decision under 38 C.F.R. § 4.16(b) is a factual finding but it is based on a lower evidentiary threshold than for a grant of an extraschedular TDIU. 31 Vet. App. 58. Here, the Board agrees with the Director's assessment that the evidence of record does not support a grant of an extraschedular TDIU. (Continued on the next page) The Veteran is currently service connected for disabilities of his left foot. His fracture residuals with arthritis are assigned a 20 percent rating prior to October 2002 and 30 percent thereafter and his left flat foot is assigned a 20 percent rating as of October 2018. His application for a TDIU reported that he has 4-years of college education and that he worked since 2016 as a liaison. See March 2021 VA Form 21-8940. He reported that he last worked full-time in February 2020 and has not sought or been refused work since that time. The Veteran also submitted a statement in March 2021 which indicated that walking was his only problem with his work and that his prior job required a lot of walking. The Veteran's VA examinations confirm that the Veteran is severely limited in his ability to walk or stand for prolonged periods of time; however, the medical evidence of record does not show that the Veteran had any restrictions in his sedentary abilities or activities. See October 2017, April 2018, and October 2020 VA examinations and October 2020 private medical record. Though pain when trying to stand from a seated position was noted in his VA examinations, there is no indication that his ability to perform sedentary tasks was limited or restricted. Additionally, the Veteran and his representative have not identified or introduced any evidence regarding the Veteran's inability to work or secure gainful employment due to his service connected left foot disabilities. In light of the Veteran's past work history, training, and skills and in light of the medical evidence in this case, the Board finds that the preponderance of the evidence is against finding that the Veteran is incapable of substantially gainful work. Accordingly, entitlement to a TDIU on an extraschedular basis is not warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.