Citation Nr: 21064644 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-51 214 DATE: October 21, 2021 REMAND Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1970 to October 1973. This matter was initially before the Board in December 2019, where the Veteran's TDIU claim was remanded for additional development. Specifically, the Board determined that the matter of entitlement to a TDIU was inextricably intertwined with the Veteran's claims for service connection for bilateral hallux valgus and bilateral osteoarthritis of the first metatarsal phalangeal joint (MPJ). The matter returned to the Board in April 2021, where it was again remanded for additional development. The Veteran's TDIU claim was referred to the Director of Compensation Service (Director) for extraschedular consideration. Such development has been completed and the matter returned to the Board for appellate consideration. The Board further observes that the Veteran has initiated an appeal to the Board with respect to denials of service connection for hypertension, left knee disability, lumbar spine disability, peripheral vascular disease, bilateral lower extremity radiculopathy and a right knee condition. The outcome of these decision could potentially impact the current claim on appeal. The Veteran seeks entitlement to TDIU solely on disability affecting her feet. VA will grant TDIU when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining unemployability, 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, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of 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 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and 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, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.) In October 2014, the Veteran filed an application for TDIU. She stated that she has been too disabled to work since February 2012. The record reflects that the Veteran has a high school education and an associate degree in criminal justice. She worked at a textile plant was a weaver. She has also worked as a city bus driver, pharmaceutical assembly line worker. The Veteran is service-connected for painful scars of the bilateral foot, rated as 20 percent disabling; hallux valgus of the right foot with osteoarthritis of the first MPJ, rated as 10 percent disabling; hallux valgus of the left foot with osteoarthritis of the first MPJ, rated as 10 percent disabling; and noncompensable disability ratings for scars of the right and left foot associated with hallux valgus. The Veteran's combined rating was 40 percent. She does not meet the schedular requirement for TDIU under 38 C.F.R. § 4.16. The Veteran has been deemed permanently disabled since April 2012 based on a primary diagnosis of peripheral vascular disease and a secondary diagnosis of chronic renal failure. Another identified disorder was late effects of cerebrovascular disease. SSA noted a residual functional capacity as occasionally lifting and/or carrying 20 pounds, frequently lifting and/or carrying 10 pounds, standing and/or walking 6 hours in an 8-hour day, and sitting for a total of 6 hours in an 8 hour workday. In a January 2020 disability benefits questionnaire, the Veteran's treating physician diagnosed the Veteran with bilateral hallux valgus with osteoarthritis. The physician indicated that her bilateral foot disability results in pain with ambulation and standing. The Veteran is unable to stand or walk without pain and the pain occurs within minutes of walking. The Veteran's impairments consist of pain upon movement and weight bearing, bilateral swelling, disturbance of locomotion and interference with standing. During flare ups, she is unable to walk or stand. Regarding occupational limitations, the examiner indicated that "she will need to be employed in a sedentary occupation/activity." The Veteran submitted a private vocational opinion in February 2020. The examiner indicated that the Veteran's bilateral foot condition rendered her only capable of standing for extremely brief periods of time and that she was unable to wear shoes. He indicated that her post-service occupation involved working in a textile plant as a weaver, which was an occupation considered light in physical demand. The examiner defined a sedentary occupation as sitting most of the time with walking or standing required only occasionally. The examiner provided opinion that the Veteran's educational level and occupational experience did not result in any transferable skill base for a sedentary occupation that would earn substantially gainful employment. On the other hand, the Director of Compensation and Pension has determined that the Veteran's unemployability is not shown to be solely based on her service-connected bilateral foot disability and the SSA clearly found other nonservice-connected disabilities as the cause of unemployability. Additionally, the vocational expert does not adequately explain why 2 years of college education precludes a sedentary occupation in a field other than criminal justice. Overall, the Board finds that further expert opinion is need on this matter. Accordingly, this matter is REMANDED for the following: 1. Associate with the claims folder updated VA treatment records. 2. Obtain opinion from a physiatrist or similarly qualified vocational expert to comment on the functional impact of the Veteran's service-connected painful scars of the bilateral foot, hallux valgus of the right foot with osteoarthritis of the first MPJ, hallux valgus of the left foot with osteoarthritis of the first MPJ, and surgical scars of the right and left foot on her employability, and identify whether - given the Veteran's education, training and previous work experience - there are employment opportunities where she could earn income above the poverty level for an individual with one dependent working a solely sedentary occupation. If the Veteran is found to have been capable of performing substantially gainful employment, please provide an example or examples of the type of employment within the Veteran's capabilities. (continued on the next page) In providing this opinion, the examiner is requested to consider the January 2020 opinion that the Veteran could only stand for brief periods of time and would need to be employed in a sedentary occupation/activity and the assessment by the February 2020 vocational expert. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.