Citation Nr: 21073583 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 09-14 431 DATE: December 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from August 2, 2018, to October 31, 2020, on an extraschedular basis is granted, subject to regulations governing payment of monetary benefits. FINDING OF FACT From August 2, 2018, to October 31, 2020, the Veteran's service-connected disabilities precluded substantially gainful employment. CONCLUSION OF LAW From August 2, 2018, to October 31, 2020 criteria the criteria for an award of TDIU, on an extraschedular basis, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.17. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1994 to January 1996. This case has a long procedural history. This appeal was most recently before the Board in July 2021 when it was remanded in order for the Board to address a separate appeal of increased ratings of residuals of stress fractures of the first metatarsal of the left and right feet and for calcaneal spurs, degenerative arthritis. The Board addressed that appeal in a September 2021 decision. Accordingly, the remaining issue is entitlement to an extraschedular TDIU prior to October 31, 2020. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 31, 2020, on an extraschedular basis The Veteran has been awarded TDIU from October 31, 2020. The Boar finds that entitlement to TDIU is warranted from August 2, 2018, to October 31, 2020. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (a). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Notwithstanding the above listed schedular criteria, a veteran may be awarded a TDIU on an extraschedular basis if she is nonetheless unemployable because of his service-connected disabilities. 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In March 2021 the AOJ sent the claim for TDIU prior to October 31, 2020 to the Director of Compensation Service for consideration. In March 2021, Director denied entitlement to TDIU on an extraschedular basis. Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233 (2015). 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). Prior to October 31, 2020, the Veteran had established service connection for a right foot disability, evaluated as noncompensable (0 percent) from January 27, 1996, 10 percent from July 21, 2006, 20 percent from January 25, 2019, 100 percent from May 3, 2019, and 20 percent from July 1, 2019; a left foot disability, evaluated as noncompensable (0 percent) from January 27, 1996 and10 percent from July 21, 2006; a right femur disability, evaluated as 10 percent from January 27, 1996; a back disability, evaluated as July 21, 2006; a left femur disability, evaluated as noncompensable (0 percent) from January 27, 1996 and 10 percent from July 21, 2006; a left hip disability, rated as 10 percent from January 4, 2016; extension of the left hip, rated as noncompensable (0 percent) from January 4, 2016; extension of the right hip, evaluated as noncompensable from January 4, 2016; flexion of the right hip, evaluated as noncompensable from January 4, 2016; flexion of the right hip, evaluated as noncompensable from January 4, 2016; and flexion of the right hip, evaluated as noncompensable from January 4, 2016. Prior to July 25, 2016 the Veteran had established service connection for a back disability, evaluated as 20 percent from January 13, 2005; a right knee disability, evaluated as 10 percent from January 13, 2005; a left knee disability, evaluated as 10 percent from January 13, 2005; tinnitus, evaluated as 10 percent from December 6, 2008; and bilateral hearing loss, evaluated as noncompensable (0 percent) from October 26, 2007 and as 10 percent from March 15, 2012. The issue of TDIU is moot for the period of the temporary total ratings from May 3, 2019 to June 30, 2019. See Herlehy v. Principi, 15 Vet. App. 33 (2001). For the remaining periods, his combined rating was 40 percent from July 21, 2006; 50 percent from January 4, 2016; 60 percent from January 25, 2019; and 60 percent from July 1, 2019. Thus, she did not meet the percentage requirements set forth in 38 C.F.R. § 4.16 (b). In a February 2017 remand, the Board included entitlement to TDIU as part of the appeal pending from a February 2007 rating decision which included increased rating claims made received in July 2006. See Rice v. Shinseki, 22 Vet. App. 447 (2009). On November 2006 VA foot contract examination, the Veteran reported that following service she worked as a massage therapist, and had returned to school part time while working in retail sales part time. She denied having any loss of time from work and no treatment for foot pain. The examiner noted that she could perform her usual activities of daily living except for prolonged walking or climbing multiple flights of stairs. In an October 2007 VA treatment note, the Veteran was noted to work fulltime in retail and was a fulltime student in physical education. In a statement received in March 2009 from A.Z. he reported that he had worked with the Veteran for 10 months in retail and that he wondered how she was able to continue working due to her hip and foot injuries. In a February 2009 statement from her employer, they reported that she had been employed with their retail store since August 2002 and that she had numerous incidents of tardiness and absences due to her hip and feet injuries. They noted that in 2008 she missed 14 consecutive days due to her injury. On November 2010 VA examination, the Veteran reported she was employed fulltime working retail and had lost 1 week in the past 12 months due to her disability because of podiatrist appointments. The examiner found there was significant occupational effects due to her feet, and disabilities with decreased mobility, weakness or fatigue, decreased strength, and lower extremity pain and with her back disability with pain on prolonged standing. On August 2012 VA contract examination, the examiner opined that the Veteran's back disability impacted her ability to work as it impacted her ability for prolonged sitting, standing, walking, repetitive bending and heavy lifting. In a March 2014 rating decision, service connection for a back disability was granted with a 10 percent evaluation, effective July 21, 2006. In an April 2014 statement the Veteran reported she had been unemployed for the previous 16 months and she was uncertain of being able to perform many job duties. In a statement received in August 2014, the Veteran reported she began a new job in June 2014, but after a week she began to experience severe pain in her right foot and discovered it was fractured. In a February 2016 rating decision, service connection for a left hip flexion and extension was with a noncompensable (0 percent) rating and impairment of the left hip with a 10 percent evaluation, effective January 4, 2016. On March 2017 VA hip contract examination, the Veteran reported constant anterior hip pain and lateral hip pain, that was worse with activity. The examiner opined that her hip disabilities did not impact her ability to perform any type of occupational task, but noted that she could only perform light physical and sedentary task due to her hip disabilities. In a May 2017 rating decision, the rating of the Veteran's right foot disability and left foot disability were both increased from noncompensable (0 percent) to 10 percent, both effective July 21, 2006. In a June 2017 VA treatment note, the Veteran reported she worked in a tool room. In a September 2017 VA treatment note the Veteran reported she needed to work 14 hours that day because of new inventory and she could not risk anything with her new job. In a July 2019 VA Form 21-4192 request for employment information, the Veteran's former employer, Limerick, reported that the Veteran had worked 40 hours a week from February 2018 to August 2018 and that she voluntarily left employment. They reported that she had lost 56 hours of work in the 12 months preceding her last date of employment. They also reported that no concessions were made to her due to her age or disability. In a July 2019 VA Form 21-4192 request for employment information, the Veteran's former employer, Kinkisharyo, reported that the Veteran worked as a material handler between 40 and 55 hours a week from July 2015 to February 2018, and that she had resigned. They reported that no concessions were made to her due to her age or disability, and that it was unknown to them what time she had lost in the last 12 months of her employment. On August 2019 VA foot contract examination, the examiner noted that the Veteran needed a boot for short term use due to a recent May 2019 right foot surgery and an insert for her left foot. They also noted that she had an abnormal gait and was a fall risk. The examiner opined that the Veteran's right and left foot disabilities impacted her ability to perform any type of occupational task because she could not stand or walk for prolonged periods of time. In her February 2020 application for TDIU, the Veteran reported he right foot, left foot, right hip, left hip, and back prevented her from securing or following any substantially gainful occupation. She reported she had last worked full time in August 2018, when she became too disable to work, and had worked in solar manufacturing. She reported she had two years of college education and massage school training. On February 2020 VA back contract examination, the Veteran reported that she continued to have lower back pain and locking in her legs. She reported she had to modify her activity due to pain and she had functional limitations because she could not stand or sit for over one hour at a time. She also reported she had to limit her staying in the same position over a consistent period as it would cause her flare-ups to get worse. The examiner noted the Veteran regularly used a cam boot and occasionally used crutches and a cane to help her walk. The examiner opined that the Veteran's back disability impacted her ability to work because she had pain with activities of daily life and with standing or sitting for over one hour period of time, and trouble ambulating due to locking in his back and legs. On February 2020 VA hip contract examination, the Veteran reported having flare-ups of her right and left hip disabilities which occur once or twice a day, both severe lasting for 20 minutes and precipitated by sitting or standing or pain with ambulation over an hour. She reported functional impairment as she was unable to sit or stand for long durations due to pain, had pain with trying to bend down, pain with rotation at her hip, and trouble ambulating due to gait imbalance secondary to the pain. The examiner opined that the Veteran's hip disabilities impacted her ability to work because she was unable to sit or stand for over an hour and had a gait imbalance due to pain im her lower back and hips. On February 2020 VA feet contract examination, the Veteran reported having trouble walking due to her feet. She reported having flare-ups of her right and left foot disabilities occurring 2 to 3 times a day, lasting 10 minutes and precipitated by walking or standing for extending periods. She reported functional impairment with limited standing and walking endurance due to the pain in both her feet forces her to rest. The examiner found there was pain on movement, pain on weight-bearing, and interference with standing for both feet. The examiner opined that the Veteran's feet disabilities impacted her ability to work because she had standing and walking with pain. In an April 2020 opinion, the February 2020 contract examiner opined that the Veteran was unable to work on her feet or perform sedentary work at that time due to her recent foot surgery with healing issues. In a March 2021 VA advisory opinion regarding the effects of the Veteran's service-connected disability on her employment prior to October 31, 2020, the examiner noted the Veteran was fully employed since 2010. They opined that based on her right foot condition, she would have significant restriction of prolonged standing or walking for less than 30 minutes at a time before needing to rest, but was not limited in sedentary employment as she would not put pressure on her right foot. The examiner noted she could perform work behind a computer, phone work, or clerical work without much difficulty. They opined that her back disability and hip disabilities would have minor restriction for non-sedentary position of employment including prolonged standing and sitting for over an hour and walking for about an hour, and that lifting would be restricted to 30 to 40 pounds at a time. There would also be no restriction for sedentary positions other than sitting for over an hour before needing to get up. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). As noted above, the issue of entitlement to TDIU was found to be intertwined with appeals of increased ratings dating back to July 2006. During this period, the Veteran reported two periods of unemployment. She reported in April 2014 that she had been unemployed for 16 months and then in her February 2020 application for TDIU she reported she had been unemployed since August 2018, which continued. The question for entitlement to TDIU is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether she is incapable of performing the physical and mental acts required by employment. Van Hoose, 4 Vet. App. at 361. Even though the Veteran reported she was unemployed for period in 2013 and 2014, she reported in August 2014 that she began a new job in June 2014, and one of her former employers reported she had worked for them from July 2015 to February 2018, the fact that he began a new job reflects that her service-connected disabilities did not render her incapable of performing the physical and mental acts required by employment consistent wither education and occupational history. The Board finds that the Veteran's service-connected disabilities precluded her from being able to maintain substantially gainful employment from August 2, 2018. While the March 2021 VA examiner found the Veteran could perform sedentary employment, her work history in manufacturing and retail services involved physical activities, including walking and standing for long periods of time. VA examiners in August 2019 and February 2019 and in the March 2021 advisory opinion each indicated her service-connected feet, hips, and back impacted her ability to stand and walk for long periods of time during this period. The March 2021 VA examiner specifically found that she would have significant restrictions of standing or walking for less than 30 minutes before needing a rest. Accordingly, and resolving any reasonable doubt in the Veteran's favor, the Board finds that from August 2, 2018, to October 31, 2018, Veteran was precluded from securing and following gainful employment due to her service-connected disabilities, and TDIU from August 2, 2018, is warranted. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.