Citation Nr: 21066278 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 13-23 526 DATE: October 29, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU), to include on an extraschedular basis is denied. FINDING OF FACT The Veteran does not meet the schedular requirements for a TDIU, and the preponderance of the evidence shows that the Veteran is not precluded from securing or following substantially gainful employment solely due to his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2005 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Seattle, Washington. The Board found the issue of entitlement to TDIU was raised by the record and remanded for referral to the VA Director of the Compensation Service in March 2021. There has been substantial compliance with the March 2021 remand directives and the matter was properly returned for adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to TDIU, to include on an extraschedular basis, is denied. The Veteran contends his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16 (a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). 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 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) (citing 38 C.F.R. §§ 4.1, 4.15). 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 or she can find employment. Id. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation as having 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. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). If a Veteran fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), an extraschedular rating is to be considered by the Director of Compensation Service if the evidence suggests that such Veteran is unable to obtain or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. § 4.16(b). The Court has held that the Director's extraschedular decision is one of fact, not one of opinion, discretion, or policy, and is reviewable by the Board on a de novo basis. The Board may assign an extraschedular rating when appropriate, and is only precluded from assigning an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). With respect to the term in the first instance, the Court clarified that the Board may assign extraschedular ratings when reviewing either a grant or a denial of an extraschedular rating by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Pursuant to the requirements of 38 C.F.R. § 4.16 (b), the Veteran's case was submitted by the AOJ to the VA Director of Compensation Service for extraschedular consideration. The Veteran is service connected for left ankle tarsal coalition (10 percent prior to September 3, 2010 and 20 percent thereafter), left hip strain (10 percent), tinnitus (10 percent), left knee tendonitis (0 percent prior to September 3, 2010 and 10 percent thereafter), right abdomen scar (10 percent), right foot disability (0 percent prior to September 3, 2010 and 10 percent thereafter), and left thigh scar and left foot disability (0 percent). The Veteran's combined evaluation prior to September 3, 2010 was 40 percent and increased to 50 percent thereafter. As the Veteran does not meet the schedular criteria for a TDIU, the Board must consider whether the Veteran nevertheless demonstrated that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(b). After a review of the competent evidence of record, the Board finds that a TDIU on an extraschedular basis is not warranted. The Veteran submitted VA Form 21-8940 which showed he completed high school and has experience in sales. He stopped working in February 2012 and indicated this was a result of his service-connected disabilities and nonservice-connected psychiatric disability. The Veteran's representative indicated in a statement in April 2015 indicating he was hospitalized extended periods of time because of his diagnosed schizoaffective disorder. The Veteran's representative also stated that he was unable to work as a result of several psychiatric disabilities, including posttraumatic stress disorder, depression, anxiety, bipolar disorder, obsessive compulsive disorder, and psychotic and delusional disorder. The statement noted that the Veteran is unable to care for himself as a result of "extreme mental illness" and requires a caregiver to meet his needs. Social Security Administration (SSA) records obtained in December 2015 show the Veteran qualified for disability benefits on July 14, 2012. The SSA determination listed affective/mood disorders as the primary diagnosis and alcohol dependence/marijuana addiction as secondary. An SSA Administrative Law Judge found the Veteran was severely impaired as a result of major depressive disorder, personality disorder, substance abuse and alcoholism, and left ankle disability. The Veteran underwent VA examinations July 2007, July 2008, August 2008, October 2010, January 2016, and February 2020. The July 2007 examiner opined that the Veteran's left ankle disability prevent running, high impact activities, and prolonged walking, standing, and walking on uneven ground. The Veteran denied any residuals from his service-connected scars during a 2007 examination. An August 2008 examiner opined that the Veteran's left hip, knee, ankle, and bilateral feet condition should not affect his work life because the Veteran tolerated walking up to 10 miles per day. A Board-Certified Orthopedic Surgeon examined the Veteran in October 2010 and opined that the Veteran's left ankle disability, thigh scar, and hip disabilities did not cause functional impairment based on his review of the objective evidence and in-person examination. The examiner indicated that the left knee disability is not functionally limiting and is minimally symptomatic. January 2016 VA examination reports indicated that the service-connected scars, knee disability, bilateral feet disability, and tinnitus did not cause functional impairment. The Veteran's left ankle however precluded occupations that required walking, standing, climbing, or carrying heavy loads. The 2016 VA examiner stated that the Veteran should avoid any activities that aggravate his service-connected left hip disability. February 2020 VA examination reports indicated that the Veteran's left hip, knee, and ankle disabilities prevented prolonged sitting, standing, and walking. This matter was referred to the VA Director of Compensation Service (Director) in accordance with the March 2021 Board remand. The Director reviewed the Veteran's claim file, including but not limited to April 2015 and May 2015 statements, private medical records, VA medical records and examination reports, hearing testimony, and the March 2021 Board remand. After reviewing the evidence, the Director conceded that the Veteran's service-connected disabilities cause functional limitations. However, the Director found that the preponderance of the evidence shows that he was not unable to obtain or maintain gainful employment solely by reason of his service-connected disabilities. While it is ultimately a rating consideration as to whether the Veteran is able to obtain or maintain substantially gainful employment, the medical evidence of record in this case does not suggest that the Veteran was so functionally limited by his service-connected disabilities as to be unable to obtain or maintain substantially gainful employment. VA medical opinions weigh against the Veteran's claim for a TDIU are persuasive and found to have great probative value, as they indicated the levels of the Veteran's functional impairment for his service connected disabilities and were provided after the examiners had an opportunity to interview the Veteran, review his record, and conduct physical examinations of the Veteran. The reports show that his service-connected disabilities would not preclude work entirely. The Veteran has not submitted any medical information which indicates an inability to sustain substantial gainful employment due to his service-connected disabilities. The Board acknowledges that the Veteran and his representative are competent to report symptoms of his service-connected disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). They are not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code or to assess whether the symptoms preclude employment. Such competent evidence concerning the nature and extent of the Veteran's service-connected disabilities, and in particular his ability to work, has been provided by the VA medical professionals indicating the levels of functional impairment due to service-connected disabilities. The evidence of record is against a finding that the Veteran's service-connected disabilities alone were sufficient to produce unemployability. Although they produced some impairment, the preponderance of the evidence including lay statements from the POA, SSA findings, SSA examiners, VA treatment records, and private treatment records reflect that the Veteran is afflicted with severe mental illness and substance abuse challenges that have caused significant difficulties in his life and are the primary causes of his inability to obtain and maintain substantially gainful employment. As discussed in Withers v. Wilkie, 30 Vet. App. 139 (2018), the term "sedentary employment" is not defined in statute or regulation, and there is no requirement that it be used. However, if it is used, the Board should explain the meaning of sedentary work on a case-by-case basis as derived from the term and how the term applies to the Veteran's specific educational and occupational history. "Sedentary" means "doing or requiring much sitting" or "not physically active." Merriam-Webster's Collegiate Dictionary 1123 (11th ed. 2012). It also means "1. Sitting habitually; of inactive habits. 2. Pertaining to a sitting posture." Dorland's Illustrated Medical Dictionary 1687 (32nd ed. 2012). In this case, the Veteran is capability for sedentary employment is not impacted by his service-connected disabilities. Given the Veteran's experience in sales and the functional limitations solely caused by his service-connected disabilities based on the probative evidence of record, the Board finds he is able to work in a sales or clerical environment that permits him to work in a seated position and take breaks to stand and walk short distances. (Continued on the next page) The Board observes that the prior Board remand found that the case should go to the Director for consideration of extraschedular. In this regard, the Board notes that the prior Board remand was equivocal in its language and did not provide a recitation of evidence and inquiry into whether the Veteran is unemployable solely due to service connected disabilities. When considering the entirety of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unable to find and sustain employment due to his service-connected disabilities. Accordingly, a TDIU on an extraschedular basis is not warranted. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, 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.