Citation Nr: 21074881 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-07 357 DATE: December 16, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), on an extraschedular basis, is granted. FINDING OF FACT The Veteran's service-connected left foot disability has prevented him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.10, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1965 to February 1966. This case comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Bord in December 2018, at which time it was denied. The Veteran appealed that decision to the United States Court of Appeals for Veterans' Claims (Court). In August 2019, the Court granted a Joint Motion for Partial Remand which vacated the December 2018 Board decision and remanded the case to the Board for action consistent with the Joint Motion. The Board then remanded the claim in April 2020 for referral to the Director of Compensation (hereinafter, "Director") for extraschedular consideration. 1. Entitlement to TDIU on an extraschedular basis The Veteran contends that he is unemployable due to service-connected arthritis of the left tarsal bone. A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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 purposes of TDIU, disabilities of common etiology will be considered a single disability. Id. The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. Id. Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The Court recently held that if the Board bases a denial of TDIU in part on the conclusion that a veteran is capable of performing sedentary work, then it must define that term considering the specific facts of each case, including a particular veteran's work history, education, and training. See Withers v. Wilkie, 30 Vet. App. 139, 150-51 (2018). However, even when the percentage requirements are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015). The Director's decision is not evidence, but, rather, the de facto RO decision, and the Board must conduct de novo review of this decision. Id. at 238-39. The Board's determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require it to award an extraschedular rating. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Veteran's service-connected disabilities include arthritis of the left foot tarsal bone, rated as 30 percent disabling, and a painful surgical scar, status post excision of the sinus tarsi and excision of the calcaneal spur rated at 10 percent. He has a combined rating of 40 percent for these service-connected disabilities. A claim for TDIU was initially received in June 2015. The Veteran reported that he last worked in December 2011. The application reflects that he was employed as the owner of a bakery from April 1994 to May 2011. He was employed as a baker from May 2011 to November 2014. The Veteran indicated that his left foot disability prevents him from working. Information from his last employer, a casino, reflects that he was employed as a baker for 12 days in November 2014. The reason for his termination was described as "personal." In a July 2015 statement, the Veteran stated that he stopped working in his last position as a baker at a casino because he was worried that his foot problems would cause someone to get injured. The Veteran reported that, when he owned a bakery, his employees did the physical work. He stated that he oversaw operations such as ordering supplies and overseeing putting supplies away. The Veteran stated that it was a low-income career because he had to hire employees to do all of the physical work. The Veteran stated that it was not possible for him to be employed in any other career besides being self-employed or working for his family as a baker. In May 2015, the Veteran had a VA examination for arthritis of the left tarsal bone. The examination noted that the Veteran's foot disability causes functional impairment with occupational tasks. The Veteran stated that he had difficulty walking up and down steps. He noted that he had difficulty holding a job as a baker, as he could not be on his feet for extended periods of time. In a July 2015 statement, the Veteran addressed his reason for leaving his last job. He stated that he told his last employer that his feet problems would eventually cause someone to get injured. In August 2015, the Veteran provided a tax return for 2011, which showed earnings of $8,133 in 2011. In January 2021, the case was reviewed by the Compensation and Pension service for extraschedular consideration of TDIU. The opinion found that although the Veteran's "service-connected conditions do cause functional limitations, the preponderance of the evidence does not show that [he] is unable to obtain or maintain gainful employment due to his service-connected conditions." Upon review of the medical and lay evidence, the Board finds that the evidence demonstrates that the Veteran is unable to obtain or maintain substantially gainful employment because of his service-connected arthritis of the left foot tarsal bone, in light of his education and work experience. Thus, it finds that, in accordance with 38 C.F.R. § 4.16 (b), an extraschedular TDIU is warranted. In Ray, the Court held that with respect to substantially gainful employment, 4.16 (b) includes an economic and non-economic component. To receive an extraschedular TDIU, a claimant must have earned an annual income that does not exceed the federal poverty level for one person. The Court held that, in determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: the veteran's history, education, skills and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. The Court set forth factors that may be relevant, including the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with co-workers, and demonstrate reliability and productivity. Ray, 31 Vet. App. at 84-86. Applying these factors to the present case, the Board finds that the Veteran's income in his last year of employment was below the Federal poverty level. The federal poverty level for one person in 2011 was $10,890. See https://aspe.hhs.gov/2011-hhs-poverty-guidelines. He has training and experience in the occupations of a bakery owner and baker. The Board finds that the Veteran does not have the physical ability to perform the occupation of a baker due to limitations on standing caused by his service-connected left foot disability. His position as a bakery owner involved both sedentary and physical duties. However, that occupation requires a medium to heavy level of physical activity. The May 2015 VA examination showed that functional impairment from his foot disability affects his ability to be on his feet for long periods. Thus, the Board must find that, due to his service-connected left foot disability, the Veteran is unlikely to be able to secure or follow more than marginal employment consistent with his background, training, and education at any job. The Veteran's work experience is not applicable solely to a sedentary occupation, as the occupations for which he has training and experience involve a medium to heavy degree of physical activity. In light of the foregoing, the Board finds that the Veteran is unemployable due to his service-connected left foot disability. Accordingly, entitlement to an extraschedular TDIU rating is warranted. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The claim is granted. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.