Citation Nr: 21071086 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 12-10 597 DATE: November 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 26, 2008 is denied. FINDING OF FACT The Veteran's service-connected pes planus with plantar fasciitis did not prevent him from obtaining and maintaining substantially gainful employment prior to September 26, 2008. CONCLUSION OF LAW The criteria for a TDIU prior to September 26, 2008 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1993 to May 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision. In March 2018, the Board denied the claim on appeal. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In April 2019, pursuant to a Joint Motion for Partial Remand filed by the parties to this matter, the Court vacated the March 2018 decision and remanded the claim for further consideration. In October 2018, the Board referred the claim for extraschedular consideration by the Director of VA's Compensation Service (Director). After receiving the Director's response, the Board denied the claim in December 2020. The Veteran appealed the decision to the Court, at which time both parties filed a Joint Motion for Remand requesting the Court to vacate the December 2020 Board decision and remand the matter. The Court granted the Motion in July 2021, and the matter is again before the Board. The Veteran contends that he is entitled to a TDIU prior to September 26, 2008. He contends that his service-connected pes planus with plantar fasciitis disability regularly caused him pain and prevented him from standing or walking for prolonged periods. He has requested several effective dates for his TDIU award, including the day after separation from service. The Veteran filed a claim for TDIU in December 2005 which was denied in a January 2007 rating decision. The Veteran filed a timely appeal but withdrew his appeal in November 2007. He then filed a new claim for a TDIU on December 18, 2007. Prior to September 26, 2008, the threshold requirement for the assignment of a schedular TDIU were not met. See 38 C.F.R. § 4.16(a). Following his 2005 claim, he was only service connected for one disability, pes planus with plantar fasciitis, rated at 50 percent from December 15, 2005. As such, the sole means to a TDIU during this period is through an extraschedular evaluation. See 38 C.F.R. § 4.16(b). Whether the veteran can find employment is not determinative; the focus of the inquiry is on "whether the veteran is capable of performing the physical and mental acts required by employment." See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Recently, in Ray v. Wilkie, the Court interpreted and defined the phrase "unable to secure and follow a substantially gainful occupation" in § 4.16 to encompass two components: one economic and one noneconomic. See 31 Vet. App. 58, 72 (2019). Regarding the noneconomic component, the Court provided guidance "as to the meaning of a veteran's ability to 'secure and follow' such employment." Id. The Court held that attention must be given to: 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. See id. The Court noted that this is not "a checklist that must be run through in every case;" rather, "discussion of any factor is only necessary if the evidence raises it." Id. After consideration of the evidence, the Board finds that, prior to September 2008, the Veteran was capable of performing the physical and mental acts required by sedentary employment. The record shows that he had a high school diploma, a two-year certification in forestry, and a previous employment history with work involving "computer skills" and "drafting/design tech." Thus, his educational and employment history tends to indicate an ability to work with his mind and upper extremities in a setting without the physical rigors associated with manual labor. In short, the absence of evidence of a service-connected disability affecting the mind and body above the knees, combined with demonstrated capacity and abilities, tend to show an ability to secure and follow a substantially gainful occupation. See Withers v. Wilkie, 30 Vet. App. 139 (2018). The Board recognizes that the referral decision from 2019 indicated that, considering his grades, it is "unlikely that this coursework conferred any usable skills to the Veteran." Regardless of whether this coursework gave him skills to successfully perform a specific occupation, the Board finds it relevant that such educational pursuits would involve skills such as use of computers, completing paperwork, etc., which would be translatable to multiple sedentary occupations of a more general nature. The Veteran's Social Security Administration disability claim shows that there were available jobs that he could successfully perform, considering his work history, educational background, and his service-connected disability. SSA recognized the Veteran had several severe impairments including moderate right Achilles' tendinosis, pes planus, plantar fascial fibromatosis, and a history of plantar fasciitis. SSA found, however, that the Veteran had the residual functional capacity to perform sedentary work. The SSA decision relied on the testimony of a vocational expert, who testified that there were several jobs the Veteran could perform considering his work history and physical disability, including as an order clerk (with about 400 jobs regionally and 100,000 or greater nationally). While SSA decisions are not binding on VA, the Board finds this determination highly probative as the administrative law judge considered the Veteran's work and educational history, effects caused by his physical impairment, and a vocational expert's testimony as to available jobs appropriate for the Veteran. Further, the evidence from 2006 to 2008 overwhelmingly shows the Veteran could physically engage in sedentary employment. In a December 2006 VA foot examination report, the examiner opined the Veteran's disability "would not interfere with sedentary work requiring only limited standing/walking, or upper body use/activity." In a February 2008 foot examination, the examiner noted he walked independently, without a cane or other assistive devices [excluding orthotic inserts], and he sat comfortably. The Veteran reported he was able to complete chores, drive, walk for 10 minutes at a time, and drive for 2 minutes at a time. In March 2008, May 2008, and August 2008 VA treatment visits, the Veteran reported that his pain primarily bothered him when weight-bearing or walking but disappeared when resting. While the Veteran stated he could not exercise due to his disability, a January 2008 treatment record shows that he sought treatment for a neck strain that "occurred while he was working out during a military press exercise" in December 2007. Thus, the Veteran's own statements made seeking treatment show that he had the physical ability to work in sedentary employment. In sum, the medical and lay evidence demonstrate the Veteran successfully perform duties required by sedentary engagement, like sitting comfortably without pain, using his upper body without pain, driving, working on a computer, and walking and standing for short periods. See Withers, 30 Vet. App. at 148. The evidence further shows that there were available jobs appropriate for him in spite of his physical disability and work history as a laborer. See id. The Board considered that the Veteran has not worked since 1998 and had difficulty finding a job through September 2008. However, the sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to substantiate a TDIU claim. See Van Hoose, 4 Vet. App. at 363. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. See id. Here, the evidence shows that the Veteran was able to perform the acts required by employment. The Board also considered the Veteran's vocational rehabilitation and employment records. In a March 2009 counseling narrative report, his counselor wrote that she could not "identify a marketable skill that could reasonably be expected to lead to employment within his physical capacities." The counselor's decision was partly based on the Veteran's service-connected psychiatric disorder, however, which was not service connected until September 26, 2008. Regardless, the Board finds that this conclusion is outweighed by the evidence detailed above, including the SSA disability determination, Director's recommendation, VA examinations, and the Veteran's VA medical records and statements made therein. Finally, while the Board's earlier decision to refer the Veteran's claim does not automatically require the Board to grant an extraschedular rating, the Board "must provide adequate reasons or bases for deviating from its earlier referral decision." The standard for referral is necessarily "based on a[n] evidentiary threshold that is lower than that for the decision to award an extraschedular rating." Ray v. Wilkie, 31 Vet.App. 58, 62 (Mar. 14, 2019) (holding that the Board is not bound to grant an extraschedular benefit even if the Board itself previously determined that referral to the Director was appropriate); see also Anderson v. Shinseki, 22 Vet.App. 423, 427-429 (2009) (discussing why initial determinations in extraschedular analysis by the regional office and determinations by the Director are not binding on the Board even if favorable to the Veteran). The Board reasonably determined that the evidence was sufficient to trigger the Veteran's procedural right to referral to the Director for extraschedular consideration, but this did not involve a weighing of the favorable and unfavorable evidence to make a final determination on entitlement to extraschedular TDIU. Therefore, the Board has made its own determination as detailed above regarding whether extraschedular TDIU is warranted. The Board has not "deviated" from the referral decision. That decision indicated referral was warranted as the evidence suggested the Veteran could not engage in jobs entailing physical labor. The 2020 denial of this claim still concluded "the Veteran could not work in a job requiring physical activity involving his legs during the relevant time period," and the Board still finds that is a reasonable conclusion. That is not the end of the inquiry, however, as he remained able to engage in sedentary employment, and his educational and employment history tends to indicate an ability to work with his mind and upper extremities in a setting without the physical rigors associated with manual labor. During this time period, he had no service-connected disability affecting the mind or body above the knees. Evidence from SSA indicated that the Veteran had the residual functional capacity to perform sedentary work, and a vocational expert testified that there were several jobs the Veteran could perform considering his work history and physical disability. The Board acknowledges that his vocational rehabilitation and employment counselor stated he did not have a successful school term since Fall 2003 and was not enrolled in school after May 2006. However, she further noted that a number of personal issues interfered with his case at that time, only one of which was foot pain. Therefore, the record does not support his disability prevented him from attending school and would have similarly prevented him from successfully working at a sedentary job. After considering the Veteran's entire disability picture, previous work experience, and educational background, the Board finds that the Veteran's service-connected bilateral pes planus with plantar fasciitis did not preclude him from securing and following a substantially gainful occupation prior to September 26, 2008. Accordingly, the claim for an extraschedular TDIU is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lavan 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.