Citation Nr: 21068910 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 09-37 408A DATE: November 15, 2021 ORDER Entitlement to a total disability evaluation based upon individual unemployability (TDIU), to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. Prior to September 8, 2008, the Veteran's service-connected disabilities were not so exceptional or unusual to render the schedular rating inadequate and the disability picture did not exhibit other related factors such as marked interference or frequent periods of hospitalization that application of the regular schedular rating criteria was impractical. 2. From September 8, 2008, the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU on an extraschedular basis, prior to September 8, 2008, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. From September 8, 2008, the schedular criteria for an award of TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.10, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 7, 1970 to June 23, 1970, with additional periods of active and inactive duty for service (ACDUTRA and INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded this appeal in August 2017, May 2018, May 2019, October 2020, and April 2021, and the matter has been returned for appellate consideration. The Board has reviewed the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal. Applicable Law and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following 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. Id. Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high 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 can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The U.S. Court of Appeals for Veterans Claims (Court) has also held that a clear explanation of a denial of a total rating based on individual unemployability requires analysis of the current degree of unemployability attributable to service-connected disability as compared to the degree of unemployability attributable to nonservice-connected conditions. Cathell v. Brown, 8 Vet. App. 539 (1995). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' 38 C.F.R. § 4.10 (2013), but it is the rating official who is responsible for 'interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,' 38 C.F.R. § 4.2 (2013)."). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Prior to September 8, 2008. For the period from September 8, 2007 and prior to September 8, 2008, the Veteran was service-connected for the residuals of a left distal tibia and fibula fracture with a tender scar and traumatic arthritis of the left ankle (considered 40 percent disabling) and a lumbosacral strain (considered 20 percent disabling), with a total combined evaluation of 50 percent. During this period, the Veteran did not have either 1) one service-connected disability rated at 60 percent or 2) two or more disabilities with at least one disability rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Therefore, prior to September 8, 2008, the Veteran did not meet the schedular TDIU requirements. Id. Entitlement to a TDIU may still be granted on an extraschedular 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. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), such as the case here, rating boards can refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, despite the Veteran not meeting the percentage requirements for schedular TDIU, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions, which would have justified a TDIU. See 38 C.F.R. §§ 3.341(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board realizes it cannot assign an extraschedular TDIU evaluation in the first instance under § 4.16(b). The Board's analysis is limited to merely granting or denying referral for extraschedular consideration. Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). However, the Board may adjudicate whether a referral to the Director of Compensation Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Recently, the Court clarified that the initial decision whether to remand for extraschedular referral to the Director of Compensation Service under § 4.16(b) should address whether there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities. The Board's initial finding that extraschedular referral for TDIU is warranted is a factual one but is necessarily based on an evidentiary threshold that is lower than that for the ultimate decision to award an extraschedular TDIU rating. Ray v. Wilkie, 31 Vet. App. 58, 62-66 (2019). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, if the Director of Compensation denies an extraschedular TDIU rating under 38 C.F.R. § 4.16 (b), the Board then, reviewing that decision without deference and bearing in mind the benefit of the doubt standard, decides whether the Veteran is unemployable by reason of his or her service-connected disabilities. Id. Only after the Director of Compensation has determined that an extraschedular evaluation under § 4.16(b) is not warranted does the Board then have jurisdiction to decide the TDIU claim on the merits. In April 2021, the Board referred this claim to the Director of Compensation to determine if the Veteran was entitled to extraschedular consideration under 38 C.F.R. § 4.16 (b). During a May 2006 VA Bones examination, the Veteran reported that flare-ups of his ankle condition occurred with standing in excess of half an hour and ambulation in excess of one to two blocks. See VA Examination Report, May 17, 2016. The Veteran took rest breaks in response to this and changed jobs from auto truck driver to transportation truck driver. scar and traumatic arthritis of the left ankle. Id. X-ray evidence revealed residuals of fracture of the left distal tibia and fibula with residual scar and traumatic arthritis. Id. Based on this evidence, it is clear that the Veteran was able to maintain gainful employment during the period prior to September 8, 2008. Further, the Executive Director of the Veterans Benefits Administration's (VBA) Compensation Service also found that the Veteran's disabilities during this time period did not render him unemployable. See VA Memorandum, Advisory Opinion, VBA Compensation Service, August 18, 2021. From September 8, 2008. From September 8, 2008, the schedular criteria for entitlement to TDIU were met based on a single combined 60 percent evaluation pertinent to disabilities affecting a single body/orthopedic system: the residuals of a left distal tibia and fibula fracture with a tender scar and traumatic arthritis of the left ankle (considered 40 percent disabling). a lumbosacral strain (considered 20 percent disabling), degenerative joint disease (DJD) of the left hip (considered 10 percent disabling), and DJD of the left knee (considered 10 percent disabling). 38 C.F.R. § 4.16(a)(3). A November 2008 VA Examination for Joints noted the Veteran's complaints of residual pain in his left ankle immediately after his accident in 1971 with fracture of the left distal tibia and fibula for which he underwent open reduction and internal fixation. He noted that he developed pain in his left hip and back in 2004 and pain in his left knee in approximately 2007. He endorsed a history of residual aching and stiffness involving his left hip, his left knee, and his left ankle occurring on a daily basis, although, he had not had surgery on the above-named joints. The Veteran stated that he took ibuprofen or Aleve twice a day as needed with moderate relief without significant side-effects. He was also a truck driver until 2006 when he got laid off. He was able to operate a motor vehicle, dress and undress, and attend the needs of nature without assistance. A January 2010 VA treatment record documents that the Veteran sustained a fall in a department store when he tripped due to his left ankle disability. A July 2010 VA urology record notes that the Veteran reported that he had retired 2 months prior. A February 2012 VA note documents that the Veteran reported that he retired from truck driving due to complications with his ankle. During a VA examination in March 2012, the Veteran reported having retired in 2010. He used a cane for assistance with walking and wore a brace on his left ankle due to his ankylosis. The examiner noted that the Veteran's left ankle and left knee disabilities impacted his work, as he retired due to back pain and stiffness, and to a lesser extent because the left ankle disability VA examination of the lumbar spine in January 2015 noted that the Veteran was retired. He was unable to sit, stand or walk for prolonged periods and indicated that he was forced to retire from his work as a truck driver due to his low back pain. VA examination of the lumbar spine in March 2016 documents that the Veteran was unemployed. The examiner noted that the low back disability would impact employment due to constant burning/aching pain in the low back, as well as morning stiffness, fatigability, and pain with weather changes. A VA note dated in June 2017 stated that the Veteran had borrowed a walker to assist him with ambulation and that VA ordered one for his use. September 2017 VA examination reports addressing the left ankle, left hip, left knee, and low back, reflect that the Veteran worked at a service station from 1979 until the 2000s and then worked in an office. The Veteran related that he had retired at age 62. His service-connected disabilities were noted to impact the Veteran's ability to perform occupational tasks, but he was able to attend to the normal activities of daily living and could walk and stand for 30 minutes "without much problem." He tried to avoid prolonged walking, standing, or resting on his left hip. The Veteran left these examinations after three hours stating that he was tired. In October 2017, the Veteran presented for new VA examinations. At the time of the examination, the Veteran' explained that he retired at age 62 due to age after having worked his last six years in an office. With respect to the Veteran's service-connected disabilities of the left ankle, left knee, low back, and left hip, they each impacted the Veteran's ability to work but did not preclude the normal activities of daily living. The low back disability limited lifting to 20 pounds, sitting for one hour and walking and standing to 15 minutes. The left ankle disability resulted in pain and a limp and limited standing and walking to 30 minutes but did not prevent activities of daily living or a "little bit" of yard work. The left knee and left hip limited standing and walking to 30 minutes. In each case the Veteran avoided prolonged walking and standing. In January 2018, VA obtained an opinion related to the severity of the Veteran's left ankle disability. At issue was whether the disability was of such severity as to result in effective amputation. The VA examiner explained that they did not see where "such an amputation would occur," noting that the Veteran "has been functioning/adjusting with his left ankle injury condition ... as he worked at a service station for 21 years" and in an office for six years thereafter. The Veteran was afforded VA examinations of the lumbar spine, left hip, and left knee July 2019. At this time, the Veteran used a walker constantly to assist in ambulation. Overall, his disabilities prevented strenuous work, high impact work, prolonged standing, prolonged sitting, prolonged walking, prolonged weightbearing and ambulating without walker. The Veteran last received a VA examination for the low back in February 2021. At that time, the examiner remarked that the disability prevented physical activity that requires repetitive bending, or that requires prolonged or vigorous physical exertion such as heavy lifting or manual labor. In July 2021, a quasi-factual finding was made that the Veteran's service-connected disabilities may preclude his ability to maintain substantial gainful employment and, therefore, VA remanded the claim for referral to the Executive Director of VBA's Compensation Service for extraschedular consideration. Such was accomplished and an Advisory Opinion was issued by the Director in August 2021. The Court in Ray, has acknowledged, however, that the Board's decision to refer a matter for extraschedular consideration is a quasi-factual finding and does not automatically bind the Board to award an extraschedular rating. Ray v. Wilkie, 31 Vet. App. 58. At the time of the April 2021 Board remand, the factual determination was only made on whether the evidence suggested a possibility of an extraschedular award such that referral for an advisory opinion was warranted. The Board did not weigh the medical evidence, the economic factors, or the non-economic factors at that time. As will be outlined below, the Board now finds on closer examination of the record, that a TDIU award, including on an extraschedular basis prior to September 8, 2008, is not warranted. The Veteran states that he has been unable to obtain and maintain substantially gainful employment since approximately 2010. On several occasions, he has been asked to return a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability (TDIU Application) but has not done so. While the evidence shows the Veteran had physical limitations, the evidence does not support a finding that the Veteran's service-connected disabilities resulted in an inability to obtain and maintain substantially gainful employment. With respect to the Veteran's physical and mental abilities, during the applicable period, he would have been precluded from most physical labor due to his ankylosed left ankle, as well as his lumbar spine, left hip, and left knee disabilities, which progressed in severity during the pendency of the appeal. In terms of mental ability, there is no indication of any impairment thereof. With respect to the economic considerations, the Board has little information as to the Veteran's prior income, education, training, skills, and work history as these factors pertain to his ability to perform substantially gainful employment. Prior to his retirement the Veteran was gainfully employed. However, despite repeated requests for information from VA, the Veteran has failed to provide VA the necessary information to address his economic considerations. As far as the Board can reasonably discern, the Veteran worked at a service station and as a truck driver for 21 years, until he switched to an office job and retired six years later. The Board has no other information as to the Veteran's education, training, or skills. The Board notes the duty to assist is not a one-way street; a claimant cannot stand idle and fail to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991). Based on the available evidence, the Board can only conclude that the Veteran's disabilities prevented physical labor, which resulted in him switching to an office job in approximately 2010, but not that the Veteran's physical disability prevented all types of substantially gainful employment. Here, the Veteran worked the last six years of his career in what appears to be a sedentary office environment, until he retired at the age of 62. There is no indication that his service-connected disabilities have resulted in any impairment of his mental ability. It thus appears to the Board that sedentary employment would not be precluded in the Veteran's case. While VA has not explicitly defined the meaning of sedentary employment, the meaning and relevance of the term is determined on a case-by-case basis from the medical and lay evidence in light of the Veteran's education, training, and work history. Withers v. Wilkie, 30 Vet. App. 139 (2018). In this case, there is no indication that the Veteran's service-connected disabilities precluded sedentary employment, and his six years of presumably substantially gainful office work until he retired due to age show that he has had the skills and experience to work in a sedentary capacity. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran's claim for TDIU, on both a schedular and extraschedular basis, is denied. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.