Citation Nr: 21072807 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 08-15 227 DATE: December 6, 2021 ORDER An effective date of September 21, 2006 for a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis is granted. FINDING OF FACT From September 21, 2006, the Veteran's service-connected right fibula and ankle disability precluded him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW From September 21, 2006, the criteria for a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1982 to September 1986. By way of background, the Veteran's claim for a TDIU was denied in a March 2010 rating decision. The Veteran did not appeal that decision, and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. However, a March 2016 Board decision determined TDIU had been raised by the record due to documents received by the Social Security Administration. The issue was remanded for an examination on the impact of the Veteran's service-connected disabilities on his employability. In a June 2018 decision, the Board denied entitlement to a TDIU without providing the Veteran said examination, finding such an examination unnecessary. The Veteran appealed this Board decision to the Court of Appeals for Veterans Claims (Court). In December 2019, the Court granted the parties' Joint Motion for Remand (JMR), wherein the parties agreed the Board erred by not providing an adequate VA examination nor an adequate statement of reasons or bases for the decision. In January 2020, the Board remanded the Veteran's claim for a TDIU to provide him a VA examination on the impact of his service-connected disabilities, as required by the March 2016 Board decision, and for referral to the Director of Compensation Service (Director) to consider whether an extraschedular TDIU is warranted for the period prior to July 22, 2014. A July 2021 rating decision granted entitlement to a TDIU from July 22, 2014. In August 2021, the Director responded to VA's request for extraschedular consideration prior to July 22, 2014, finding "no evidence of inability to perform sedentary employment due to service-connected disabilities" prior to July 22, 2014. Thus, whether a TDIU is warranted prior to July 22, 2014 is still before the Board. Period on Appeal Initially, the Board notes the period on appeal dates back to September 21, 2006, the date the Veteran filed an increased rating claim for his service-connected right fibula and ankle disability. The Board acknowledges the Veteran did not appeal a March 2010 rating decision denying a claim for TDIU; however, finds it was unnecessary for the Veteran to signal his disagreement with the rating decision for his TDIU claim to remain in appellate status. Since that time, the Court issued Harper v. Wilkie, 30 Vet. App. 356, 359 (2018), which governs this scenario. In Harper, a [posttraumatic stress disorders (PTSD)] increased rating claim and a request for TDIU proceeded in separate adjudication streams. Mr. Harper did not file a Notice of Disagreement challenging the effective date assigned to his TDIU. The Board concluded that his failure to do so caused that issue to become final, even though the underlying PTSD claim remained in active appellate status. The Court disagreed. The outstanding TDIU issue 'remained part and parcel of Mr. Harper's underlying PTSD claim and was properly before the Board for adjudication.' 30 Vet. App. at 359. Harper conveys that when an appellant places an increased rating claim into appellate status and the record contains evidence of unemployability, the TDIU request remains 'part and parcel' regardless of bifurcated proceedings. That led it to conclude that no Notice of Disagreement was necessary to initiate appellate review of a separate RO decision concerning TDIU. Thompson v. Wilkie, No. 17-4779, 2019 U.S. App. Vet. Claims LEXIS 255, *5-6 (Feb. 22, 2019) (citing and quoting Harper, 30 Vet. App. at 359). Here, the record contains evidence of the Veteran's unemployability due to his right fibula and ankle disability as early as August 2005. A Veteran-supplied vocational assessment supports such a finding as early as September 2006. In fact, even the Veteran's February 2007 rating decision noted "[o]ut patient treatment reports from VAMC Birmingham show... [y]ou said you had not been able to work since March 2005 because of severe ankle pain." Thus, with evidence in the record as early as 2005 of the Veteran's unemployability due to the underlying service-connected right fibula and ankle disability for which he has sought an increased rating, the Veteran's claim for TDIU remained part and parcel of his increased rating claim, and no Notice of Disagreement was necessary to initiate appellate review of the separate March 2010 rating decision concerning TDIU. It was thus not a final decision. Accordingly, the appellate period here is from the date the Veteran filed his claim for an increased rating for his service-connected right fibula and ankle disability, September 21, 2006. From September 21, 2006 to July 21, 2014, a TDIU on an extraschedular basis is granted. To establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 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 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. § 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For schedular consideration of a TDIU, if there is just one service-connected disability, it must be rated at 60 percent or more, and, if there is more than one service-connected disability, at least one must be rated at 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent or more. 38 C.F.R. § 4.16 (a). For purposes of this determination, disabilities resulting from common etiology or single accident, affecting both upper or lower extremities, or a single body system will be considered as one aggregate or collective disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is also the policy of VA, however, 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. 38 C.F.R. § 4.16 (b). When the Veteran's service-connected disabilities fail to meet the applicable percentage standards enunciated in § 4.16(a), an extra-schedular TDIU is for consideration if there is at least suggestion he is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b); see Fanning v. Brown, 4 Vet. App. 225 (1993). From September 21, 2006 to July 21, 2014, the Veteran is service-connected for an old compound fracture of the right fibula, status post open reduction and internal fixation with degenerative joint disease of the right ankle at 10 percent disabling prior to December 29, 2008 and 20 percent disabling thereafter, and for ankylosis of the right ankle with osteoarthritis involving several joints associated with the old compound fracture status post reduction and internal fixation with degenerative joint disease of the right ankle at 20 percent disabling from February 13, 2012. Thus, the Veteran has been in receipt of a 10 percent disability evaluation prior to December 29, 2008, a 20 percent evaluation from December 29, 2008, and a 40 percent evaluation from February 13, 2012. Therefore, prior to July 22, 2014, the Veteran's service-connected disabilities do not meet the threshold percentage criteria for a TDIU under 38 C.F.R. § 4.16. Since, however, there was at least a suggestion they or the Veteran's right fibula and ankle disability individually render him unemployable prior to July 22, 2014 when the Board previously considered the claim in January 2020, as required, the Board remanded the claim so that it could be referred to the Director for initial consideration of whether a TDIU is warranted on an extraschedular basis under the special provisions of 38 C.F.R. § 4.16 (b). See Barringer v. Peake, 22 Vet. App. 242 (2008) (Board cannot grant TDIU on an extraschedular basis in first instance, but may determine whether referral is warranted). During the pendency of this appeal, the Court issued Ray v. Wilkie, 3 Vet. App. 58 (2019). Ray held "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 Court 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. The Veteran supplied two VA Form 21-8940 applications for compensation based on unemployability. They both indicate the Veteran completed twelve years of grade school and underwent electrician training while in the Navy. The Veteran reported no additional education or training since he reports becoming too disabled to work in March 2005. His past employment had been predominately as an electrician, with approximately four years of experience as a department store manager in the electronics department. A vocational assessment submitted in December 2019 shows duties as an electrician consisted of supervising, delegating tasks, operating heavy machinery, and performing physically demanding work at construction sites. His duties as the electronics department manager consisted of providing customer care, answering inquiries on commercial and residential construction projects, and performing inventory control. He also reported the position required heavy lifting. Social security records received in May 2015 demonstrate a grant of benefits due to the service-connected right fibula and ankle disorder and a nonservice-connected lumbar spine disability. VA treatment records from August 2005 show the Veteran complained of right ankle pain related to his ankle fixation and surgery. He reported being unable to work since March 4, 2005 due to severe pain. He further noted an inability to climb stairs, shooting pain, and worsening symptoms over the prior months. At a November 2006 VA examination, the Veteran was able to get in an out of a chair and on and off an examination table, but reported pain on every range of motion tested and an inability to walk without assistive devices. VA examinations and opinions from December 2008, February 2012, and July 2014, demonstrate Veteran's significant limitation of motion, standing, walking, climbing, a high risk of falls, and great difficulty working in any environment due to his right fibula and ankle disability since 2008. For example, the Veteran reported at his December 2008 examination that he was unable to stand and walk without a brace and cane, which allowed him to ambulate merely a few yards, and was able to stand for only a few minutes. The examiner noted the presence of swelling and constant effusions. At his February 2012 examination, an examiner observed right ankle deformity, giving way, instability, pain, stiffness, weakness, and incoordination. Inflammation was noted to bring about warmth, redness, swelling, and tenderness, which the Veteran described at his June 2011 hearing as: "what it does is if it's down too long it swells up. I have to... elevate it. I can walk maybe a distance of a half a block and which I try to do daily. And when I get back, of course, I'll ice and put it up." At his July 2014 examination, the Veteran was unable to undergo range of motion testing of his right ankle due to pain. The examiner indicated pain was constant, beginning at zero degrees of motion. The examiner noted the Veteran's ankle had been replaced and that his current residuals consisted of an inability to bear weight, incoordination of movement, and severe pain and weakness, as well as fatigability, swelling, deformity, and interference with sitting. He required a cane and assistance from another person to ambulate a few feet. It was determined the Veteran's current ankle condition would likely severely impact physical and sedentary labor due to an inability to sit with his feet down and an inability to stand or walk without much difficulty. Notably, the examiner concluded the Veteran's right fibula and ankle function was so diminished that the Veteran would be equally served by amputation and prosthesis. The December 2019 Veteran-submitted vocational assessment found the Veteran's right fibula and ankle disability would have rendered the Veteran unemployable, given his education and occupational history, since at least September 2006. Nonetheless, the Director concluded in an August 2021 VA Memorandum that TDIU on an extraschedular basis was not warranted prior to July 22, 2014, finding "no evidence of inability to perform sedentary employment due to service-connected disabilities." The Director's decision is not evidence, but, rather, the de facto decision of the Agency of Original Jurisdiction (AOJ), and the Board must conduct de novo review of this 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). Although the Board is required to obtain the Director's decision before awarding extra-schedular TDIU 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); 38 C.F.R. § 4.16(b)). That said, merely because the Board determined extra-schedular consideration of the claim was warranted does not, in turn, mean the Board is obligated to grant this benefit. But the Board must provide adequate reasons and bases for any factual determination later deviating from its earlier decision to remand the claim for referral to the Director for extra-schedular consideration. Significantly, the Board affords the Director's finding no probative weight. The Director provided no explanation for why the Veteran would be capable of sedentary employment when his occupational history, education, and training indicate he has never held a sedentary occupation, nor received education or training for such. Medical evidence also indicates the Veteran would have great difficulty with sedentary employment, as the Veteran has consistently described since at least his June 2011 Board hearing increased swelling and pain, symptoms capable of lay observation, when his foot is not elevated. Notably, he reported at his doctor's appointment in August 2005 that elevation helped reduce swelling. Swelling, tenderness, and constant effusions were also noted as far back as his December 2008 VA examination. The Board therefore affords more weight to findings contained in the Veteran's December 2019 vocational assessment, as the examiner included reasoned medical explanations with citations to the Veteran's medical evidence. (Continued on the next page) Given the Veteran's service-connected right fibula and ankle disability has caused significant functional impairment by way of reduced ability to sit without his foot elevated, stand for prolonged periods and bear weight, chronic pain and consequent difficulty walking, particularly if not assisted by a brace and cane, or another individual, and when accepting that his predominate vocational skill set depends on these functions of the body, the Board finds the Veteran's service-connected right fibula and ankle disability precluded him from obtaining and maintaining substantially gainful employment from September 21, 2006. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, Associate 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.