Citation Nr: 21071633 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 12-12 416 DATE: December 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a separate rating for pes planus is remanded. FINDING OF FACT The Veteran's service-connected disabilities render him unable to obtain and retain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1977 to February 1979. In December 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In December 2013, May 2018, and February 2020, the Board remanded the claim for further development. In November 2020, the Board denied the Veteran's claim for entitlement to TDIU. The Board also denied entitlement to a separate rating for pes planus. However, in July 2021, the United States Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Partial Remand (JMPR) vacating the Board's decision and remanding the claims for further development. The parties to the JMPR stated that the Board failed to include any analysis of the Veteran's work and educational history. Additionally, the Board provided an inadequate discussion of the December 2019 VA examiner's notation that the Veteran's pes planus was separately diagnosed and reflected symptoms such as swelling, callouses, marked pronation, and decreased longitudinal arch height. The Court granted the motion and remanded the claims for further development. Entitlement to TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that 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. 38 C.F.R. § § 3.340, 3.341, 4.16. 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. 38 C.F.R. § 3.340. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 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. 38 C.F.R. § 4.16(a). 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). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19. "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). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Analysis The Veteran contends that his service-connected disabilities prevent him from securing and maintaining substantially gainful employment. In August 2012 and March 2016, the Veteran submitted VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran completed four years of high school and either one year or two years of college. He last worked full-time as a mail handler for the United States Postal Service (U.S.P.S.) on May 4, 2012. He reported becoming too disabled to work on May 5, 2012, and he noted that his severe tibial tendonitis prevented him from securing and following any substantially gainful occupation. Before and since becoming too disabled to work, the Veteran had education and/or training in employee involvement and communications for the post office. In May 2018, and as the Veteran's service-connected disabilities did not meet the schedular threshold for TDIU, the Board remanded the issue for a referral to the Under Secretary for Benefits or the Director of Compensation Service for consideration on an extraschedular basis. In a December 2019 Memorandum, the VA Director of Compensation determined that the totality of the evidence did not show any extraschedular entitlement to TDIU. However, the Veteran is now service connected for a left foot and ankle disability rated at 30 percent; a right foot and ankle disability rated at 30 percent; and limitation of motion of the left and right ankles each rated at 20 percent. As a result, the Veteran's disabilities have all resulted from a common etiology and are considered a single disability now rated 80 percent disabling effective February 11, 2011, which satisfies the threshold minimum percentage rating requirements of 38C.F.R. §4.16(a) for TDIU. Having met the objective criteria for TDIU, the remaining question before the Board is whether the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. 38C.F.R. §3.321, 3.340, 3.341, 4.16. Here, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In August 2012, the Veteran's podiatrist submitted a statement. The podiatrist stated that the Veteran worked for the U.S.P.S. as a mail handler where he loaded, unloaded, and moved bulk mail. He also performed other duties incidental to the movement and processing of mail, to include processing separating all mail received from trucks and emptying sacks, pouches, or racks. The podiatrist stated that the Veteran's job required pushing and pulling mail throughout the plant or facility. But, the degenerative changes in the Veteran's foot resulted in work problems, to include decreased mobility. In November 2008, the Veteran began having problems with his ankles and leg. His disabilities progressively got worse to where he was referred for surgical correction. Due to the disabilities, the podiatrist restricted the Veteran from running, lifting, climbing stairs and ladders, jumping, standing, or walking over 20 yards. In March 2013, April 2000, and December 2019, the Veteran was afforded VA examinations to determine the severity of his disabilities or to determine whether his service-connected disabilities prevented him from securing and maintaining substantially gainful employment. In March, the examiner confirmed the Veteran's left ankle post tendonitis and osteoarthritis of tarsal-metatarsal joint and partial tear of the posterior tibialis tendon diagnoses. The Veteran complained of increased pain in the left ankle. He experienced less movement than normal, pain on movement, deformity, disturbance of locomotion, and interference with sitting and weight bearing. The examiner stated that the Veteran had difficulty standing and walking without support. Due to his left foot pain and being unable to stand without support, the Veteran had been off work from May 7, 2012. He retired in August 2012. The examiner stated that there was no impairment for sedentary employment. In April, the Veteran was afforded a VA examination to determine the severity of his ankle disability. The examiner confirmed the Veteran's bilateral ankle osteoarthritis and left ankle partial tear of the posterior tibialis tendon diagnoses. The Veteran reported difficulty in standing or walking, needed support of a cane and a walker, and took pain medications for his disabilities. The examiner noted pain on examination which caused functional loss. The examiner stated that the Veteran's disability impacted his ability to perform any type of occupational task, i.e., the Veteran had pain and difficulty on prolonged standing and walking. In December, the examiner confirmed the Veteran's posterior tibial tendonitis, involving left ankle and posterior tibial tendonitis involving the right ankle diagnoses. The Veteran reported symptoms to include shooting pain, disturbance of locomotion, interference with standing, and prolonged standing/walking which caused increase pain and swelling. The examiner stated that the Veteran may have problems with work that required walking on uneven surfaces, pressing pedals with feet, climbing stairs/ladders, etc. due to pain and decreased ROM associated with his service-connected conditions. However, the examiner stated that the Veteran should be able to perform sedentary sitting work without any difficulty related to ankle conditions. On September 24, 2013, the Veteran applied for vocational rehabilitation. His goal was to be granted "some type of employment to help offset his life and its needs." He stated that he was most interested in computer web and graphic design. He noted that at his previous job, U.S.P.S., he processed mail and loaded and unloaded trucks. In a September 25, 2013 Memorandum, the Veteran's vocational rehabilitation counselor stated that at that time, it had been determined that it was not feasible for the Veteran to achieve a vocational goal. She further stated that retraining was not a viable option as the Veteran was no more able to complete a training program than he was to perform the functions of full-time employment. Based on the evidence of record, the Board finds that the Veteran's disabilities precluded him from all forms of employment. Although the March and December VA examiners stated that the Veteran should be able to perform sedentary sitting work without any difficulty related to his ankle conditions, the April VA examiner stated that the Veteran's disability impacted his ability to perform any type of occupational task. Additionally, his vocational rehabilitation counselor stated that, at the time of consult, retraining was not a viable option as the Veteran was no more able to complete a training program than he was to perform the functions of full-time employment. The Board also notes that because of his disabilities, the Veteran needed the support of a cane and a walker and took pain medications for his disability. When considering the Veteran's employment history as well as the medical evidence of record, in addition to affording the Veteran the benefit-of-the-doubt, the Board finds that the evidence supports a grant of TDIU. As such, the Board concludes that TDIU is warranted under 38 C.F.R. § 4.16(a). REASONS FOR REMAND The Veteran has been diagnosed with pes planus. The Veteran, through his representative, stated that the December 2019 VA examiner noted that the "Veteran continues to have same service-connected condition but also has developed pes planus which likely is due to chronic compensation from service-connected conditions." The examiner also stated that the pes planus was a separately diagnosed condition. Based on the examiner's statements, the representative stated that the Veteran should be granted a separate rating for his bilateral pes planus. The Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Although the December 2019 VA examiner stated that the Veteran developed pes planus which likely is due to chronic compensation from service-connected conditions, the Board notes that the Veteran's service entrance examination documents asymptomatic pes planus at entry. Thus, a claim of service connection for bilateral pes planus on a direct basis will be considered based on a theory of aggravation of a pre-existing disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. For the presumption of aggravation to arise, the evidence must show that there was a permanent increase in the severity of bilateral pes planus during service. Concerning secondary service connection, the Board notes that the December 2019 examiner did not provide an opinion as to whether the Veteran's service-connected disabilities aggravated his pes planus. As such, the Board finds that a remand is necessary to provide the Veteran a new VA examination to determine the nature and etiology of his bilateral pes planus, to include whether the pre-existing condition was clearly and unmistakably not aggravated beyond the natural progression of the disorder by his active duty service. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Obtain and associate all outstanding VA and private treatment records with the claims file. 2. Schedule a VA examination to determine the nature and etiology of the Veteran's bilateral pes planus. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. The examiner should opine as to the likelihood that the condition was permanently aggravated (permanently worsened beyond the normal progression of that disease) by active service. The examiner must consider and discuss the Veteran's lay statements pertaining to the onset and continuous symptoms of his bilateral foot disability. Regarding secondary service connection, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the bilateral pes planus is aggravated by the service-connected disabilities. The examiner should note that aggravation need not be beyond the natural progression of the disease for purposes of determining aggravation for this claim, i.e., the standard to be applied for secondary service connection aggravation is whether there is any aggravation of the claimed disorder. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). It the examiner finds that the Veteran's pes planus was aggravated by military service or by his service-connected disabilities, the examiner is to clarify which symptoms are attributed to the Veteran's pes planus and which are attributed to his service-connected disabilities. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The supporting rationale for all opinions expressed must be provided. 3. Then, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a SSOC and afford them the opportunity to respond before the file is returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Tara-Deen 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.