Citation Nr: 21005976 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 12-14 397 DATE: February 3, 2021 ORDER Entitlement to TDIU on an extraschedular basis prior to February 12, 2010, is denied. FINDING OF FACT Prior to February 12, 2010, the preponderance of the evidence weighs against a finding that the Veteran’s service-connected disabilities alone precluded him from obtaining or maintaining a substantially gainful occupation consistent with his education, training, and experience. CONCLUSION OF LAW Prior to February 12, 2010, the criteria for entitlement to TDIU on an extraschedular basis have not been met. 38 U.S.C. § 1155; 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 February 1976 to August 1979. Relevant Procedural History This matter is part and parcel of the appeal for an increased rating for a bilateral ankle disability, which stems from a November 2010 rating decision. Historically, in April 2018, the Board found entitlement to TDIU had been raised by the record in connection with the Veteran’s claims for increased ratings for his bilateral ankle disabilities, and remanded the claim for TDIU to provide the Veteran proper notice and the opportunity to file a formal application for entitlement to TDIU. This was accomplished, and the Board denied the Veteran’s claim in January 2019. The Veteran appealed the Board’s January 2019 denial to the Court of Appeals for Veterans Claims (Court). In a Court Order based on a Joint Motion for Remand (Joint Motion), the Court ordered that the January 2019 decision be vacated and remanded. Specifically, the parties agreed in the Joint Motion that the Board erred in its January 2019 decision by only considering the impact of the Veteran’s service-connected bilateral ankle disabilities on his ability to obtain and maintain substantially gainful employment rather than considering the combined impact of all his service-connected disabilities on his employability. Further, the Joint Motion states that the Board failed to discuss pertinent evidence, to include a December 1998 psychology report (noting that the Veteran’s “[c]ivilian employment had been in forklift, cook, driver, auto detailing and general labor activities”) and an October 2007 counseling report (discussing the impact of the Veteran’s service-connected disabilities on his employability). In April 2020, the Board granted entitlement to TDIU beginning February 12, 2010, and remanded the claim for entitlement to TDIU on an extraschedular basis prior to that date for referral to the Director of Compensation and Pension Services (Director). The Director found that entitlement to TDIU on an extraschedular basis prior to February 12, 2010, was not warranted. The Agency of Original Jurisdiction (AOJ) readjudicated and denied the Veteran’s claim in a November 2020 Supplemental Statement of the Case. Accordingly, the Board finds there has been substantial compliance by the AOJ with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim has now been properly returned to the Board for an independent determination on this matter. See Anderson v. Shinseki, 22 Vet. App. 423 (2008). Legal Criteria Total disability ratings will be assigned “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(a). An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). However, an award of TDIU does require that the claimant show an inability to secure and follow substantially gainful employment as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16. Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Where the percentage requirements for schedular TDIU are not met, TDIU may nevertheless be assigned on an extra-schedular basis when a veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities; however, the Board is precluded from assigning extra-schedular TDIU in the first instance. 38 C.F.R. § 4.16(b); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995) (finding that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Factual Background and Analysis The Veteran’s claim for TDIU is part and parcel of his claim for an increased rating for his bilateral ankles, the latter which was received on January 8, 2010. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Therefore, the Board will consider whether entitlement to TDIU is warranted one year prior to receipt of his increased rating claim, beginning January 8, 2009. See 38 C.F.R. § 3.400(o). Beginning January 8, 2009, and prior to February 12, 2010, the Veteran was service connected for left ankle degenerative joint disease and right ankle degenerative changes (each separately rated as 10 percent disabling); bilateral hearing loss (rated as 10 percent disabling); and tinnitus (rated as 10 percent disabling). The combined overall evaluation equaled 40 percent. In his July 2018 formal application for entitlement to TDIU, the Veteran stated his service-connected disabilities that prevented him from obtaining and maintaining a substantially gainful occupation included: bilateral pes planus with plantar fasciitis, hallux valgus of the right foot, and a bilateral ankle disability. Significantly, while service connection is not in effect for bilateral pes planus with plantar fasciitis and right foot hallux valgus, it was not in effect during the time period on appeal (beginning January 8, 2009, and prior to February 12, 2010). The Veteran did not list any employment, including self-employment, within five years prior to the date he completed the form. He reported he had an Associate Degree in Biblical Studies, a Bachelor of Science Degree in Biblical Counseling, a Master of Arts in Pastoral Counseling, and a Master of Divinity in Chaplaincy, and that he was in school from May 2005 to December 2014. The Veteran’s Social Security Administration (SSA) records demonstrate he held several jobs in the 1990s and early 2000s, performing mostly physical work, or at least work that requires standing some or most of the time. He has reported working as a delivery driver, performing demolition, in shipping and receiving, as a grill cook/food preparer, in packing and scanning, and as a housekeeping aid. See November 2005 and March 2006 SSA Applications for Disability Benefits. Historically, the Veteran’s employment has been interrupted several times due to substance abuse problems and incarceration for drug related charges (twice in the mid to late 1990s and at least once in the 2000s), which has clearly affected his ability to work. Admirably, the record reflects he has abstained from alcohol and drugs since 2005 and that he has not been arrested or incarcerated since then, and VRE records reflect he wished to pursue a career where he would be able to assist others with substance abuse problems and spiritual counseling. On December 10, 1998, the Veteran presented to his local VA Medical Center with complaints of depression and cocaine dependence. At a December 11, 1998, VA psychological assessment, the Veteran reported prior his “[c]ivilian employment ha[d] been in forklift, cook, driver, auto detailing, and general labor activities,” and described his most recent employment as “hustling.” He stated he was requesting inpatient admission as the result of being incarcerated from March 1998 to September 1998 for possession with intent to sell. A January 1999 VA psychiatry note reflects the Veteran reported a longstanding problem with cocaine dependence and a cocaine lifestyle, which he was trying to change. He stated he planned to stay in a halfway house for the next two months and work locally. The provider noted the Veteran was “bright, friendly, and would benefit from further education (he made A’s in High School.)” The Veteran stated he wished to work in a people-oriented field where he could make decent money, but he was concerned about his short fuse and tendency to be verbally confrontive if people frustrated him. A February 1999 VA psychiatry note indicates the Veteran was working at a consolidated mail outpatient pharmacy at the 3pm to midnight shift and was doing well; however, he indicated he was totally disorganized with his social life with multiple girlfriends and conflicting social schedules and plans. A March 5, 1999, VA psychiatry note states that the Veteran was nearing the end of his lodging at the halfway house; it was noted he had worked overtime, in addition to working as a restaurant manager, and had saved enough money to make the transition to his own residence. A March 12, 1999, VA psychology note indicates the Veteran continued to work at the consolidated mail outpatient pharmacy and worked as a restaurant manager on the weekends. An April 2, 1999, VA psychology note indicates the Veteran failed to report for work the prior week and did not call to report he would not be in; as a result, he was terminated from his position. On October 16, 2000, the Veteran presented to VA on his own accord requesting evaluation for substance abuse treatment for alcohol (six to twelve beers a day for the past year) and cocaine (two to three grams a day for the past year). It was noted he was homeless and needed assistance with, among other things, finding employment. At an October 18, 2000, Vocational Rehabilitation appointment, the Veteran expressed interest in vocational counseling and the work-for-pay program, and in November 2000, the Veteran began a housekeeping assigment through the Incentive Therapy program. An April 2001 VA vocational rehabilitation note indicates that the Veteran secured employment at a medical center as a housekeeping aid. An October 2001 VA substance dependence treatment program consultation reflects the Veteran continued to work at the same job. In February 2002, the Veteran presented to the emergency room and reported feeling very depressed; he stated he smoked cocaine the day prior but had felt this way prior to smoking and expressed suicidal and homicidal ideations. He indicated he had been using a lot of cocaine over the past three weeks and was depressed because his fiancée left him. A note the day following admission reflects the Veteran was homeless; it is unclear if he was working at that time. In a note two days following admission, the Veteran acknowledged he had been using cocaine since the prior Thanksgiving, not in the past three weeks as previously reported. A February 22, 2002, VA treatment note indicates substance abuse treatment at a further location was discussed; however, the Veteran stated he was unable to attend that program as it was too far away to keep his job. On February 24, 2002, the Veteran was given an irregular discharge; it was noted he had been gone since after lunch, had not called, and was not returning pages. The next time the Veteran sought VA treatment was in March 2003 when he sought participation in the vocational rehabilitation program; it was noted he was a previous client of this program, was unemployed, and was interested in returning to the work for pay program. A September 2006 podiatry note indicates that the Veteran was experiencing severe foot pain after being on his feet for a sustained period of time and indicated he could not work due to this condition. He stated he was currently in school and “doing well” but reported that his feet were very painful daily. In a November 2006 statement, the Veteran stated he was unable to work due to the pain in his feet. At a November 2006 VA examination, the Veteran reported chronic bilateral ankle pain indicated he had used soft casts for ambulation; he also stated he felt his foot pain prevented him from working. At a May 2007 VA examination to evaluate the left ankle, he stated he had constant pain in his ankle; he denied flare-ups. He reported using a foot brace and it was noted this was for his foot condition (which, during the period in question, is not service-connected) and the brace was not for his ankle condition. The Veteran reported his ankle disabilities affected his ability to walk and stand but that the main issue with walking and standing had to do with the feet and not the ankle. The Veteran indicated he was unemployed. An October 2007 VRE counseling record indicates the Veteran attended his initial counseling/evaluation/orientation and felt that employment through long term training track is what he needed to become suitably employed. The counselor indicated the effects of the Veteran’s service-connected disabilities (bilateral ankles, hearing loss, tinnitus) caused him to have functional limitations in obtaining suitable gainful employment; the Veteran reported he had searched for gainful employment but had only been offered employment (physically demanding) that would aggravate his service-connected disabilities. He indicated he worked in a temporary part-time job as an education assistant at a homeless facility, where he also lived, and noted his earnings from his employment paid his rent. The vocational counselor determined the Veteran’s military training as an administrative clerk would transfer into the civilian population without additional educational training. The Veteran stated he had an associate degree in Biblical Studies but that he had not been able to obtain suitable employment within the civilian sector with his military of college training. The counselor found that the Veteran’s lack of civilian training prevented him from obtaining suitable gainful employment and that he would need training to obtain marketable transferable skills to provide him the opportunity to obtain competitive suitable employment. The counselor felt the Veteran had a serious employment handicap due to three factors: (1) lack of education and transferable skills, (2) previous substance abuse, and (3) a prior felony conviction. On a career scope interest and aptitude test, while his interest scores were low, his aptitude score was high in clerical and form preparation. The Veteran stated he wished to become a pastor or counselor and that he wished to provide services to youth and adults who have felony convictions and an addiction problem. In an October 2007 employment handicap form, a rehabilitation case manager found the Veteran had a serious employment handicap due to several factors, including (1) an unstable work history, (2) long or substantial periods of unemployment, (3) alcohol/substance abuse, (4) lack of education/training suitable for employment, (5) criminal record, with four to five convictions for possession of crack, and (6) homelessness since 2005. In an October 2007 rehabilitation needs inventory form, the Veteran indicated he wished to be a pastoral counselor. He reported past temporary jobs as an event laborer (setting up, taking tickets, parking cars) and as a driver. He indicated he was unable to stand, sit, walk, or run due to his bilateral ankles and that he had difficulty hearing. He indicated he was in pain all the time and his disabilities were worsening rather than improving. The Board acknowledges that in a November 2007 decision, the Social Security Administration found the Veteran to be disabled as of October 2005; however the Board is not bound by the SSA’s determination. Significantly, SSA disability determinations consider the Veteran’s nonservice-connected disabilities and his age, which VA may not consider in determining whether TDIU is warranted. In January 2008, the Veteran contacted his vocational rehabilitation counselor and indicated he no longer wished to participate in the program because he was awarded Social Security Administration (SSA) disability benefits. At an April 2008 VA examination to evaluate the Veteran’s left ankle, he reported sharp and aching pain, weakness, lack of endurance, giving way, and fatigability. The examiner indicated that the effect of the Veteran’s condition on his usual occupation as a student is that pain is increased with standing and walking and that climbing stairs is difficult. The effects on his daily activities were reported as the inability to exercise, walk, or stand for long periods of time and trouble climbing stairs. VA neurology notes dated May and November 2009 indicate the Veteran’s gait was not ataxic but that he was able to walk on his toes and heels, but it was very painful due to ankle joint pain and neuropathic pain on the bottom of his feet. It was noted he experienced bilateral upper and lower extremity neuropathy for the past ten years, wore wrist splints, and experienced a painful right shoulder. In an August 2011 VRE form, the Veteran indicated he last worked part time from as a driver/counselor at a homeless/recovery center from July 2007 through January 2009. He further indicated he attended school for a bachelor’s degree from May 2005 through May 2009 and for a master’s degree from September 2009 to the present. A November 2020 advisory opinion from the Director indicates that the Veteran’s hearing loss disability and tinnitus have little effect on his ability to obtain or maintain employment and notes that his ankles make activities such as standing/walking for long periods of time and climbing stairs difficult. Following a review of the evidence of record, the Board finds the preponderance of the evidence weighs against a finding that the Veteran’s service-connected disabilities alone prevented him from obtaining or maintaining a substantially gainful occupation consistent with his experience. Initially, the Board acknowledges that the Veteran would not be able to return to some of his previous positions such as a forklift operator, cook, driver, auto detailer, or any other general labor activities due to his bilateral ankle disability and difficulty standing for long periods of time. See December 11, 1998, psychological assessment. However, entitlement to TDIU is not warranted simply because the evidence shows a veteran would be unable to return to the specific job or line of work performed in the past or that he or she would make a lower salary than in the past. The Board also acknowledges that the Veteran has claimed he has had difficulty obtaining a job due to his service-connected disabilities; however, entitlement to TDIU is not warranted simply because the Veteran had difficulty obtaining a specific job during this time. The ultimate question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  See Van Hoose, 4 Vet. App. at 363. Accordingly, the Board will consider whether the evidence demonstrates that the Veteran was capable of sedentary employment during the appeal period. VA regulations contain many factors to be considered as part of a TDIU analysis. See 38 C.F.R. §§ 4.16, 4.19. Whether a veteran can perform “sedentary work” or “sedentary employment” is not among them. In fact, neither the term nor any similar phrase is mentioned, much less defined, in any relevant VA statute or regulation. The Court of Appeals for Veterans Claims (Court) recently held that if the Board basis its 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). Merriam-Webster online dictionary defines sedentary as “doing or requiring much sitting” (as it pertains to a job), and therefore, the Board adopts this definition in its analysis. See https://www.merriam-webster.com/dictionary/sedentary (last visited January 27, 2021). In considering the collective effect of the Veteran’s service-connected disabilities during the time in question (bilateral ankle disability, hearing loss, and tinnitus), the Board finds the preponderance of the evidence weighs in favor of a finding he is capable of obtaining and maintaining a substantially gainful sedentary occupation, which is consistent with his education and experience. A “substantially gainful occupation” is “one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income prior to his having been awarded a 100 percent rating based on individual unemployability.” Faust v. West, 13 Vet. App. 342, 356 (2000). In evaluating a TDIU claim, the Board is not required to analyze actual opportunities available on the job market. See Pederson v. McDonald, 27 Vet. App. 276, 287 (2015). However, the Board does have a duty to rely on actual evidence of employability and analyze such evidence in concluding whether a veteran could perform work that would produce sufficient income to be other than marginal. See Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Sedentary employment to encompass a wide variety of administrative and clerical jobs, or other forms of employment that would not require the Veteran to spend a significant amount of time on his feet, standing or walking, and which would be performed in a seated position a large majority of the time. Thus, the Board determines that during the time period in question, and with consideration of his service-connected disabilities only, along with his education, training, and employment history at the time, that he would have been able to obtain or maintain various substantially gainful occupations which would have provided him with a living wage. For example, he would be able to work as a data entry clerk, which does not require a high level of computer skill set. Additionally, he would be able to work as a hand assembly line worker, a packer/shipper, wrapper, or movie ticket seller, all with reasonable accommodations for sitting. Significantly, he has reported prior experience working at a consolidated mail outpatient pharmacy, which involves packing and labeling prescriptions to be mailed. Further, he has prior experience in event planning and set-up, which he acknowledged in his vocational rehabilitation applications that this included taking tickets. The Veteran has claimed that his bilateral hearing loss and tinnitus have affected his ability to work and communicate; the Board finds his lay statements are credible and supported by the medical evidence of record and acknowledges that the Veteran’s hearing disabilities have caused interference with his ability to function occupationally and socially. However, the Board does not find that the severity of these audiological disabilities and their effects on the Veteran’s ability to function would preclude sedentary employment. The Board notes that the Americans with Disabilities Act (ADA), in addition to other federal and state laws, open the doors for people with disabilities to apply for, obtain, and maintain gainful employment. 42 U.S.C. §§ 12101, et seq. (2012). The ADA requires employments to make “reasonable accommodations” for people with disabilities in the application and employment processes unless such accommodation creates an “undue hardship” for the employer. 42 U.S.C. § 12111(9), (10). Such “reasonable accommodation” may include “acquisition or modification of equipment or devices,... the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9). The Board acknowledges that the Veteran’s hearing impairment may cause challenges in occupational functioning and may require an employer to make reasonable accommodations; however, the Board cannot conclude that the Veteran’s hearing impairment would affect his ability to obtain or maintain substantially gainful employment. While the Veteran’s bilateral ankle disability has caused him to be in pain all the time, the Board notes that during the period in question he attended school (aside from the summer) and worked part-time. The preponderance of the evidence weighs against a finding that his ability to concentrate due to pain was so impaired such that he would have been unable to obtain or maintain a substantially gainful occupation. Notably, he has not claimed such. Further, considering all the Veteran’s service-connected disabilities during the time in question (hearing loss, tinnitus, bilateral ankles), the evidence demonstrates he was able to attend school (even though he acknowledged climbing stairs and walking caused pain) and eventually go on to graduate with multiple degrees. Although the October 2007 VRE counseling report reflects the Veteran had a “serious employment handicap,” this finding was based on not only his service-connected disabilities, but also considered nonservice-connected disabilities, as well as the Veteran’s past criminal history (to include a felony conviction) and his interrupted job history due to incarceration. To the extent the Veteran’s bilateral upper extremity neuropathy symptoms have caused difficulty gripping objects, this disability is not service-connected, and therefore, may not be considered. Moreover, while the Board acknowledges that the Veteran has experienced an interrupted job history, and has considered this in making the instant determination, the preponderance of the evidence weighs against a finding he would be unable to obtain and maintain a substantially gainful occupation during the time in question. Further, the fact that some of the Veteran’s past employment may have been in a protected work environment (to include compensated work therapy) does not change the outcome of the Board’s decision. Significantly, while the Veteran may not have been able to obtain or maintain a specific job he desired or a job he performed in the past, the Board has identified several occupations which he would have been qualified for during the period in question and which would have provided him with a living wage. Based on the foregoing, the Board finds that prior to February 12, 2010, the Veteran’s service-connected disabilities alone did not preclude him from obtaining or maintaining a substantially gainful occupation consistent with his education, experience, and training. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.