Citation Nr: 21066957
Decision Date: 11/03/21	Archive Date: 11/03/21

DOCKET NO. 10-44 018A
DATE: November 3, 2021

ORDER

Entitlement to a rating in excess of 10 percent for a left ankle disability, to include whether a separate rating is warranted for plantar fasciitis, is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis prior to February 14, 2011 also is denied.

FINDINGS OF FACT

1. Even when considering his pain, swelling and other symptoms, at most, the Veteran has what amounts to "moderate" limitation of motion of his left ankle.

2. His symptoms are fully contemplated by the rating for his left ankle disability; he has other foot impairment owing, instead, to his pes planus (flat feet), which is not a service-connected disability, and his plantar fasciitis had been resolved by non-surgical care.

3. Prior to February 14, 2011, his service-connected disabilities did not meet the schedular rating requirements for a TDIU, and they did not render him incapable of obtaining and maintaining substantially gainful employment to otherwise warrant granting this benefit alternatively on an extra-schedular basis.

 

CONCLUSIONS OF LAW

1. The criteria are not met for entitlement to a rating higher than 10 percent for the left ankle disability or for a separate rating for plantar fasciitis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271.

2. Prior to February 14, 2011, the criteria are not met for entitlement to a TDIU on a schedular or extra-schedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1974 to September 1978. 

This appeal is before the Board of Veterans' Appeals (Board) on appeal from January 2010 and October 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

This case was most recently before the Board in October 2020, at which time the Board remanded these claims back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration  including to have the Veteran reexamined to reassess the severity of his left ankle disability and left foot plantar fasciitis, and to refer his TDIU claim to the Director of Compensation Service for extra-schedular consideration under the special provisions of 38 C.F.R. § 4.16(b). Those remand instructions since have been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

 

Increased Ratings

1. Entitlement to a rating higher than 10 percent for the left ankle disability (calcaneal spur) with plantar fasciitis

The Veteran contends that his left ankle disability is more severe than contemplated by his existing 10 percent rating. He also contends that he is entitled to a separate rating for his plantar fasciitis, rather than it being rated collectively with his left ankle disability (calcaneal spur). 

Left Ankle

The Veteran's left ankle disability is rated under 38 C.F.R. § 4.71a, DC 5271, for limitation of motion of the ankle. According to DC 5271, a 10 percent rating is warranted for moderate limited motion of the ankle, and a 20 percent rating is warranted for marked limited motion of the ankle. Id.  

According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked.

To give it some context, full range of motion of the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. See 38 C.F.R. § 4.71, Plate II. 

Effective February 7, 2021, VA amended the rating criteria for DC 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (meaning less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion). A 20 percent rating is warranted for marked limited motion of the ankle (meaning less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion). As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the former and revised versions of the rating criteria and apply the version most favorable to the Veteran. However, the revised standards only may be applied as of their effective date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."  

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

Under the rating criteria in effect prior to February 7, 2021, the Board finds that the preponderance of the evidence is against a rating exceeding 10 percent for the Veteran's left ankle disability. The Board acknowledges his lay reports of symptoms and that there was functional loss due to chronic intermittent pain with swelling and instability. However, even considering his lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that his ankle instability has led to rolling his ankle and falling would not result in symptoms more nearly approximating marked limitation of motion of this ankle or limitation so distinctive or emphasized that it would approximate this extent of limitation. 

The Veteran first underwent a VA ankle examination for this claim in October 2009. During this examination, the examiner noted the Veteran's left ankle was giving away, so had instability and weakness, but also pain and stiffness. The Veteran reported having flare-ups of ankle pain weekly that lasted for hours and that he could not perform chores around the house during flares. On objective physical examination, there was left ankle crepitus (a clicking sound) but no observed instability and, further, no objective evidence of pain on motion. He had left ankle dorsiflexion to 15 degrees (20 degrees is the full range of motion) and plantar flexion to 30 degrees (45 degrees is the full range of motion). There was no evidence of additional limitation with repetitive motion or ankylosis. 

In September 2012 the Veteran contended a worsening of his left ankle disability since the October 2009 VA examination and, resultantly, in April 2014, the Board remanded this claim to obtain an updated VA examination. 

The Veteran underwent the updated ankle examination in July 2014. He reported ankle pain ranging from mild to severe consisting of aching, throbbing, dull and sharp pains, and soreness. He reported flare-ups of pain that occur when sitting or driving longer than one hour, standing longer than 10 to 15 minutes, and walking more than 200 feet. On range of motion testing, he had plantar flexion to 50 degrees, representing motion past the full range of motion point at 45 degrees, and no dorsiflexion. The examiner observed less movement than normal, weakened movement, excess fatigability, incoordination, painful motion, swelling, instability, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. There was no ankylosis of the Veteran's left ankle. 

Prior to the February 2017 Board remand, the Veteran again contended that his left ankle disability had worsened, so this claim again was remanded to again obtain an updated VA examination. 

In March 2017, the Veteran underwent an additional VA ankle examination. He reported flare-ups of pain related to normal daily activity but denied any functional loss or impairment owing to his left ankle disability. On range of motion testing, the examiner observed pain on dorsiflexion testing, but there was no limitation in either dorsiflexion or plantar flexion. This supports that the range of motion of dorsiflexion to 0 degrees (representing no range of motion) at the July 2014 examination was recorded in error. The finding that the July 2014 dorsiflexion measurement was in error is also supported by that examiner's observation that there was no ankylosis in the Veteran's left ankle. An April 2017 addendum confirms there was no limitation in range of motion of the Veteran's left ankle. 

In May 2019, the Veteran underwent a still additional VA ankle examination. On initial range of motion testing, he had left ankle dorsiflexion to 20 degrees (so full dorsiflexion) and plantar flexion to 30 degrees (out of the normal 45 degrees). There was evidence of painful motion and pain on weight-bearing, but no localized tenderness or pain and no crepitus. There was no additional loss in range of motion after observed repetitive use testing. After repeated use over time testing, the Veteran had dorsiflexion to 15 degrees and plantar flexion to 40 degrees with pain, showing a slight improvement in plantar flexion from initial testing. The Veteran estimated that, during flare-ups, his range of motion was the same as during repeated use over time. He had a slight reduction in left ankle strength, but no muscle atrophy. Further, there was no observed joint instability. He described the functional impact of his left ankle disability as trouble with stooping, squatting, bending, getting in and out of cars, and walking. 

In January 2020, the Veteran underwent yet another VA ankle examination. The examiner diagnosed left ankle deltoid ligament sprain (chronic/recurrent) and degenerative arthritis, diagnosed in 2014. The Veteran reported flare-ups of pain that occur monthly and consist of mild, hours long pain. He reported that his left ankle disability causes instability and guarding. A precedent decision of the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that an objective clinical finding of instability is not required, noting this also may be established by subjective complaint. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). 

On initial range of motion testing, the Veteran had a full range of motion of his left ankle without objective evidence of painful motion or pain with weight-bearing. However, repeated use over time testing revealed left ankle dorsiflexion to 15 degrees and plantar flexion to 35 degrees, with pain and lack of endurance. The Veteran estimated that, during flare-ups, he has dorsiflexion to 13 degrees and plantar flexion to 32 degrees  with pain, fatigue, lack of endurance, and incoordination. This examiner observed the Veteran had disturbance with locomotion and interference with standing, owing to his left ankle disability. This examiner further indicated the Veteran had "less movement than normal due to ankylosis" but then contrarily found there was no ankylosis of the Veteran's left ankle. 

In March 2020, the Veteran's attorney submitted a private opinion addressing the severity of the Veteran's left ankle disability, earlier authored by Dr. D.M. in November 2019. Dr. D.M. stated that he believed the Veteran's left ankle disability would be properly rated under DC 5257 for "severe lateral instability." However, DC 5257 pertains to the knee and leg, and an ankle disability cannot be rated "as equivalent to" the knee DC as Dr. D.M. suggests. Additionally, the medical evidence of record shows the Veteran's left ankle disability is primarily manifest by painful limitation of motion, which is directly contemplated by the DC 5271 currently assigned. In this opinion, Dr. D.M. explained the Veteran's left ankle disability was primarily manifest by pain and instability and was severe in nature. 

Partly because of the discrepancy during the January 2020 VA examination concerning whether there is ankylosis of the Veteran's left ankle, the Board again remanded this claim in October 2020 for still additional VA examination and opinion. 

In February 2021, to this end, the Veteran underwent an additional VA ankle examination. He said his left ankle disability causes intermittent pain and swelling and reported that his functional loss includes increased ankle pain with prolonged standing and walking, especially on uneven walkways. On initial range of motion testing, he had full dorsiflexion  so to 20 degrees, and plantar flexion to 35 degrees (out of the normal 45 degrees), with no objective evidence of pain or crepitus. He also denied flare ups of pain, and there were no noted additional factors contributing to his left ankle disability. He had full left ankle strength with no muscle atrophy or ankylosis. The examiner indicated that ankle instability or dislocation was suspected, but also that the anterior drawer test and talar tilt test were negative, and the examiner observed no instability during the examination. 

Most recently, the Veteran underwent a VA ankle examination in June 2021. He described his current left ankle symptoms as intermittent pain and swelling, but he denied flare-ups of pain. He further reported that pain can increase after repeated use over time, that he feels like his left ankle will roll, and that he has fallen around five times in the past year  but which he attributed to his bilateral (so, left and right) ankle disabilities. He again had full range of dorsiflexion  so to 20 degrees, and plantar flexion to 35 degrees (out of the normal 45 degrees) on initial range of motion testing. There was objective evidence of left ankle crepitus but no localized tenderness or pain on palpation. After repeated use over time testing, he had dorsiflexion to 10 degrees and plantar flexion to 25 degrees, along with pain, weakness, fatigability, lack of endurance, and incoordination. The examiner remarked that the Veteran's left ankle disability interferes with standing and causes instability of station. Again, though, there was no ankylosis of his left ankle, and tests for instability  including the anterior drawer test and talar tilt test  were negative, therefore indicating no instability. 

Ultimately, then, the evidence of record does not show that the Veteran's left ankle limitation of motion has been "marked" (as opposed to "moderate") during the review period on appeal, in turn meaning a rating higher than 10 percent is not warranted under the rating criteria in effect prior to February 7, 2021. At worst, he had left ankle dorsiflexion to 10 degrees, representing half of the full range of dorsiflexion (again, when considering that normal dorsiflexion is to 20 degrees), and plantar flexion to 25 degrees, so more than half of normal plantar flexion (which is to 45 degrees). See again 38 C.F.R. § 4.71, Plate II. The Board is sympathetic to his reports of instability, pain, and swelling, but these factors, when considered with the extent of his limitation of motion, do not tend to support a higher 20 percent rating for his left ankle disability. Further, these symptoms have been considered, so taken into account, in his existing 10 percent rating. The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997).

Under the revised rating criteria that took effect as of February 7, 2021, the Board finds that the preponderance of the evidence is similarly against a rating greater than 10 percent for the Veteran's left ankle disability because his dorsiflexion, at worst, has measured to 10 degrees and his plantar flexion, at worst, has measured to 25 degrees. Thus, these measurements do not satisfy the level of restriction required for a higher 20 percent rating. The Board again acknowledges his lay reports of symptoms and that there was functional loss due to pain, excess fatigability, incoordination, repetitive use, and pain during repetitive use over time. But even considering his lay reports of symptoms and functional loss, he denied flare-ups during his most recent examination (also during some of his prior examinations), and, in any event, the degree of additional limitation reflected by his statements would not result in symptoms more nearly approximating marked (as opposed to moderate) limitation of motion of his left ankle (to reiterate, meaning less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion).  He does not have either.

The Board additionally has considered whether any other DCs related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different DC. See 38 C.F.R. § 4.71a. The medical evidence of record does not show the Veteran ever has had ankylosis of this ankle (it has been clarified that he does not) or subastragalar or tarsal joint, any malunion of os calcis or astragalus, or astragalectomy. As such, a rating under the DCs pertaining to these other impairments is not warranted. See 38 C.F.R. § 4.71a, DCs 5270, 5272-74. 

Plantar Fasciitis

Concerning the Veteran's contention that he is entitled to a separate rating for his plantar fasciitis, the Board does not find that one is warranted. The October 2003 rating decision that granted service connection for "calcaneal spur, left ankle, with plantar fasciitis" noted that his disability was manifest by left ankle limitation of motion and tenderness to palpation in the area of the left plantar fascia. 

 

In the opinion by Dr. D.M., submitted to VA in March 2020, he indicated that he believes the Veteran's plantar fasciitis is "the direct result of his initial injuries sustained while on active duty." Further, Dr. D.M. surmised that it was at least as likely as not the Veteran's work history after separation had caused a permanent accelerated progression of the disability. 

Pursuant to the Board's October 2020 remand directive, additional opinion was obtained concerning the Veteran's plantar fasciitis. In February 2021, he underwent a foot conditions examination that confirmed diagnoses of plantar fasciitis and arthritic conditions of the left foot, specifically, degenerative joint disease (DJD) of this foot. However, this examiner clarified that the Veteran's left foot arthritis was not caused by his plantar fasciitis or heel spur, as medical literature does not support a causal relationship between arthritis and either of these other disabilities. 

Also, in March 2021, a VA examiner reviewed the relevant evidence in the file and provided various additional requested opinions to comply with the October 2020 Board remand. This examiner opined that the Veteran's left foot arthritic condition, DJD, was not aggravated by his service-connected lumbar spine disability as the two conditions are unrelated and, therefore, a causal relationship is not plausible. Further, neither the Veteran's service-connected right ankle nor left ankle disability aggravated his left foot DJD, as the ankle spurs and plantar fasciitis have no effect on the bones of the feet and, therefore, cannot worsen or aggravate DJD of the feet. Additionally, according to this examiner, the relationship is not supported by medical literature. 

Finally, in June 2021, the Veteran underwent his most recent in-person VA foot conditions examination. This examiner diagnosed bilateral flat feet [pes planus], bilateral plantar fasciitis, and bilateral DJD. Concerning the Veteran's plantar fasciitis, this examiner observed that the Veteran had undergone non-surgical treatment that relieved his plantar fasciitis symptoms. This examiner attributed the Veteran's pain and swelling of his feet to his pes planus, not to his plantar fasciitis, and indicated the Veteran does not have extreme tenderness of the plantar surfaces of his feet such as would be characteristic of symptomatic plantar fasciitis. 

 

This examiner explained that the Veteran's pes planus is "related to a possible causation of the bilateral plantar fasciitis." This examiner pointed out that the Veteran's pes planus diagnosis preceded his plantar fasciitis diagnosis. In support of this opinion, this examiner cited to medical literature indicating individuals with pes planus are at an increased risk for developing plantar fasciitis. Further, the diagnosis of DJD of the feet "is separate and unrelated to the service-connected diagnosis", as arthritis is caused by inflammation within a joint, whereas plantar fasciitis is inflammation of a thick band of tissue that connects the heel bone to the toes. Finally, this examiner added that medical literature does not support any correlation between relationship or causation from plantar fasciitis or calcaneal spurs to arthritis (DJD). 

The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury, so long as the symptoms for one condition are not "duplicative of or overlapping with the symptom[s]" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Here, though, the June 2021 VA examiner found that the Veteran's plantar fasciitis had been relieved by non-surgical intervention, and that his foot symptoms are attributable to his nonservice-connected pes planus. Thus, the symptoms resulting from the Veteran's calcaneal spur, left ankle, with plantar fasciitis are contemplated by his current rating under DC 5271, limitation of motion of the ankle, and a separate, additional rating for plantar fasciitis would contravene VA's anti-pyramiding regulation. 

Therefore, in conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating higher than 10 percent for his left ankle disability  including for a separate rating for his plantar fasciitis. In denying any greater compensation, the Board finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

 

TDIU

2. Entitlement to a TDIU on an extra-schedular basis prior to February 14, 2011

This issue of entitlement to a TDIU was raised by the record since derivative of the claim for a higher rating for the left ankle disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Originally, the Board found that it had been raised by the record in the February 2017 Board remand. However, the October 2020 Board decision and remand found that the issue of entitlement to a TDIU had been inferred from the Veteran's earlier June 2009 claim. That decision granted a TDIU on a schedular basis as of February 14, 2011, leaving the period prior to that date still at issue. 

VA will grant a TDIU when the evidence shows the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. Neither the Veteran's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.340, 3.341, 4.16.

A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that a Veteran is unable to obtain or follow a substantially gainful occupation as a result of service connected disabilities and has a single service-connected disability ratable at 60 percent or more, or two or more service-connected disabilities when one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability or disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. See 38 C.F.R. § 4.16(a).

For the period still under review, from June 2009 to February 13, 2011, the Veteran's service-connected disabilities did not meet the schedular rating requirements for a TDIU. For this earlier period, he was in receipt of service connection for a mood disorder, rated as 30-percent disabling; a lumbar spine disability, rated as 20-percent disabling; and bilateral ankle disabilities, each rated as 10-percent disabling. This is a combined rating of 60 percent. See 38 C.F.R. § 4.25.  Hence, he does not have sufficient ratings for these service-connected disabilities to qualify for a TDIU on a schedular basis, meaning according to § 4.16(a), even accounting for his left and right ankle disabilities collectively as one aggregate disability or other disabilities that may derive from common etiology.  

However, even if, as here, a Veteran fails to meet the applicable percentage standards set forth in § 4.16(a), the Board should consider whether to refer the claim to the Director of the Compensation Service for extra-schedular TDIU consideration under the special provisions of § 4.16(b). But, at most, the Board can consider whether this referral is warranted, not instead grant a TDIU on an extra-schedular basis in the first instance. See Barringer v. Peake, 22 Vet. App. 242 (2008).

In October 2020, to this end, the Board remanded this issue of entitlement to a TDIU on an extra-schedular basis prior to February 14, 2011, so this claim could be referred to the Director of Compensation Service for this special consideration. The record shows that, in February 2021, the RO accordingly referred this claim to the Director of the Compensation Service and that, later during that same month, the Director issued an Advisory Opinion denying a TDIU on an extra-schedular basis prior to February 14, 2011 because the Veteran was gainfully employed as a VA employee, no less, for that entire period.  

Extra-schedular TDIU consideration requires contemplation of the following factors: severity of the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b).

That said, the Director's decision is not evidence, but, rather, the de facto decision of the AOJ, and the Board must conduct de novo review of that decision. 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 extra-schedular consideration). The Court since has reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extra-schedular rating and elaborated that the Board is authorized to assign an extra-schedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Although the Board is required to obtain the Director's decision before awarding extra-schedular benefits, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages, 27 Vet. App. at 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); and 38 C.F.R. § 4.16(b) in the TDIU context).

"Substantially gainful employment" is employment" that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). The mere fact that a veteran is unemployed or has difficulty obtaining employment is not enough since a disability rating, itself, is recognition that there is impairment of earning capacity. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Federal Circuit Court held that, when a Veteran is claiming entitlement to a TDIU based on the combined effect of multiple service-connected disabilities, VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). 

On March 14, 2019, so during the pendency of this appeal, the Veterans Court (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; 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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to:  the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities

Here, though, the evidence of record does not tend to show that the Veteran's service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment prior to February 14, 2011. To the contrary, as the Director pointed out, the evidence of record is clear that the Veteran was gainfully employed as a nursing assistant at a VA facility until February 2011, so during this earlier period at issue prior to February 14, 2011. His VA treatment records show that he was gainfully employed in a non-protected position at a VA medical center (VAMC) for about 27 years and retired around February 2011. The report of a January 2012 VA mental health examination shows that he attributed his retirement to his service-connected mental health disorder, but the October 2020 rating decision already granted a TDIU from February 14, 2011 onward, so from the time he stopped working, following his retirement from his 27-year career as a nursing assistant, so accepting that his service-connected disability may have impacted or factored into that "retirement". 

Notably, however, the Veteran has not contended, and the evidence does not show, that he was unable to maintain or obtain substantially gainful employment due to his service-connected disabilities prior to retiring in February 2011, so during the time at issue from June 2009 to February 13, 2011. To reiterate, he since has been awarded a TDIU for the period commencing at retirement from his 27-year career, which is also the time he contends that his service-connected disabilities worsened to the point of precluding him from continuing to work in a substantially gainful capacity  whether still for VA or instead for someone else. Therefore, entitlement to a TDIU on an extra-schedular basis prior to February 14, 2011 is not warranted. 

 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Pak

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.