Citation Nr: 21068009 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 15-26 962 DATE: November 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, effective August 29, 2012. REMANDED Entitlement to an increased disability evaluation for fracture, fifth metatarsal, right foot, currently rated as 10 percent disabling, is remanded. FINDING OF FACT Since August 29, 2012, the Veteran's service-connected disabilities render him unable to engage and retain substantially gainful employment. CONCLUSION OF LAW Since August 29, 2012, the criteria for TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from May 1979 to September 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in January 2012 and February 2013 by the Department of Veterans Affairs (VA) Regional Office (RO). In the January 2012 rating decision, the RO denied the Veteran's claim for an increased, compensable disability rating for fracture, fifth metatarsal, right foot. In the February 2013 rating decision, the RO, in pertinent part, denied the Veteran's claim of entitlement to TDIU. During the pendency of the appeal, in a May 2021 rating decision, the Veteran was awarded an increased, 10 percent disability evaluation for his fracture, fifth metatarsal, right foot, effective September 13, 2011. As the Veteran has not been granted the maximum benefit allowed, the claim of entitlement to an increased disability rating remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In August 2018, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in May 2021. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that on June 23, 2021, the Board sent the Veteran a letter copied to his then current representative informing him that he had 90 days from the date of the letter to request a change in representation or to submit additional argument or evidence. Within 90 days of this letter, in June 2021, the Veteran's representative submitted a request for the record to be kept open for an additional 90 days to submit additional evidence. Although it does not appear that the Board informed the Veteran's representative that the request was granted, the Board kept the record open for the requested 90 days. Just prior to the expiration of the 90 day period, in September 2021, the Veteran's representative submitted another request for the record to be kept open for an additional 90 days due to a delay that the representative encountered in receiving the records requested on the Veteran's behalf. The Board acknowledges that the representative's September 2021 request to leave the record open remains outstanding. However, as the Board is granting the claim for TDIU, and remanding the claim for an increased disability rating for a fracture of the fifth metatarsal of the right foot as a result of due process considerations, the Board finds that there is no possible harm to the Veteran's claims in proceeding at this time; the remand of the claim for an increased disability rating has the same effect as an extension in leaving the record open such that additional evidence may be obtained and considered by VA. Moreover, the Board observes that a grant of another extension request would unnecessarily delay the adjudication of the Veteran's claim for TDIU and deprive him of the benefit granted herein. TDIU 1. Entitlement to TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of this section, disabilities of both upper or lower extremities will be considered a single disability. 38 C.F.R. § 4.16(a)(1). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). "Substantially gainful employment" is that employment "which 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) (2020). The Veteran seeks entitlement to TDIU based on his service-connected disabilities. The Veteran submitted a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in March 2020. The Veteran indicated that he had a high school education and stopped working as a letter carrier in September 2012. The Veteran indicated that he stopped working due to his service-connected disabilities. The Veteran also indicated that he has not sought employment or additional training since becoming too disabled to work. The Veteran is in receipt of a 70 percent disability evaluation for a mood disorder, effective August 29, 2012; a 50 percent disability evaluation for status-post left knee replacement, effective August 29, 2012; a 20 percent disability evaluation for chronic strain of the left shoulder, effective August 29, 2012; a 10 percent disability evaluation for fracture, fifth metatarsal, right foot, effective September 13, 2011; a 10 percent disability evaluation for right ankle sprain, effective August 29, 2012; and a noncompensable disability evaluation for a residual surgical scar, effective June 27, 2006. The Veteran has a combined disability evaluation of 90 percent, effective August 29, 2012. See 38 C.F.R. § 4.25. Given that disabilities of both lower extremities are considered one disability under 38 C.F.R. § 4.16(a)(1), the Veteran met the schedular criteria for TDIU under section 4.16(a) effective August 29, 2012. VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Based on the evidence of record, the Board finds that, as of August 29, 2012, the Veteran's service-connected disabilities render the Veteran unable to obtain or sustain substantially gainful employment for the rating period on appeal. The Board acknowledges that the December 2012 and September 2020 VA foot examination reports indicate that the VA examiner found that the Veteran's service-connected disabilities did not render him unemployable, and that the Veteran is able to sustain a gainful occupation with reasonable accommodations; the December 2012 VA examiner found that the Veteran was capable of light sedentary or semi-sedentary work that did not require prolonged walking or standing. The September 2020 VA examiner found that the Veteran was capable of working so long as the job did not require any physically demanding tasks. However, the Veteran's September 2020 VA mental disorders examination report indicates that the Veteran's service-connected mood disorder essentially renders him unable to obtain to obtain and maintain gainful employment; the VA examiner noted that the Veteran had occupational and social impairment with deficiencies in most areas, including work. Likewise, a review of the Veteran's treatment records, and additional VA examination reports indicates that the Veteran's service-connected disabilities, in combination, are productive of symptomatology that contribute to his difficulty performing occupational tasks. In this regard, the Board notes that the Veteran's VA examination reports and treatment records indicate that the Veteran cannot stand or walk for prolonged periods, lift items weighing more than 10 pounds, or perform certain repetitive tasks, and that the Veteran experiences depression, chronic sleep impairment, mild memory loss, difficulty establishing and maintain effective relationships, disturbances of mood and motivation, and negligent personal hygiene due to his service-connected mood disorder. As such, the Board finds that the evidence of record reflects symptomatology that supports the Veteran's contentions that he is unable to perform the physical and mental acts required to be employable as of August 29, 2012. See Van Hoose, supra. As a result, the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantial gainful employment. REASONS FOR REMAND 1. Entitlement to an increased disability evaluation for fracture, fifth metatarsal, right foot, currently rated as 10 percent disabling, is remanded. The Board observes that additional relevant VA medical evidence was received and uploaded into the Veteran's claims file subsequent to the issuance of the May 2021 supplemental statement of the case. A review of the electronic claims folder does not show that that the Veteran waived consideration of that evidence by the AOJ in the first instance. See 38 C.F.R. §§ 19.37(a), 20.1305(c). As a result, the Veteran's claims must be remanded so that the AOJ can consider all evidence pertaining to the Veteran's claim on appeal in the first instance. See 38 C.F.R. § 19.31(b) (the agency of original jurisdiction is to issue a supplemental statement of the case when additional pertinent evidence is received after a statement of the case has been issued). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Any remaining, available VA treatment records related to the Veteran's claimed disabilities on appeal should be associated with the Veteran's claims file. The matters are REMANDED for the following action: After completing all indicated development, the AOJ should readjudicate the claim on appeal, in light of all of the evidence of record. If the claim remains denied, the Veteran must be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. The case should be returned to the Board after compliance with requisite appellate procedures. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.