Citation Nr: 21006379 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-08 967 DATE: February 4, 2021 ORDER An extraschedular rating of 10 percent, but no higher, effective February 1, 2017, in addition to the current 30 percent rating for right foot DJD, with os perineum syndrome is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The criteria for rating foot disabilities do not adequately contemplate the symptoms of the Veteran’s right foot disability and these symptoms cause marked interference with employment. 2. The impairment caused by the Veteran's right foot disability more nearly approximates an additional 10 percent rating, but no higher, beyond the current schedular rating of 30 percent. 3. The Veteran has not established that his service-connected disabilities renders him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for an extraschedular rating of 10 percent, but no higher, effective February 1, 2017, in addition to the current schedular 30 percent rating, for right foot DJD, with os perineum syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to May 1978, and from January 1986 to December 1986. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In April 2020 decision, the Board granted entitlement to a schedular rating of 30 percent, but no higher, for right foot degenerative joint disease (DJD), with os perineum syndrome, fibrous coalition calcaneus-navicular joint is granted, prior to the June 1, 2019 effective date of severance of service connection for this disability. The Board also remanding the issues on appeal for further evidentiary development, which included referral to the Director of Compensation Services (Director) for extraschedular consideration, if warranted. 1. Right Foot Disability on an extraschedular basis VA’s schedule of disability ratings is based on average impairment in earning capacity in civil occupations resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 3.321 (a) According to 38 C.F.R. § 3.321 (b)(1), ratings are based, as far as practicable, on the average impairments of earning capacity but VA will from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director is authorized to approve on the basis of the criteria set forth in this paragraph (b), an extraschedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. The Veteran contends he has missed work due to his right foot disability. He reported symptoms in his calf, left knee and hip, and difficulty sleeping on his side. These are symptoms not contemplated by the criteria, and the medical and lay evidence raise the possibility that they interfere with employment. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the AOJ for referral to the Director. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In light of the Veteran’s contentions, the matter was referred to the Director for an opinion on whether a compensable rating could be assigned on an extraschedular basis under 38 C.F.R. § 3.321 (b). In a July 2020 advisory opinion, the Director decided that an evaluation of 30 percent, but no higher, for a right foot degenerative joint disease, with os perineum syndrome, fibrous coalition calcaneus-navicular joint is granted effective February 1, 2017 to June 1, 2019. This decision had the effect of denying a rating higher than 30 percent. The Board is not bound by the Director’s decision and it is not considered evidence. See Kuppamala v. McDonald, 27 Vet. App. 233, 236 (2015). The Board will now decide this case de novo, keeping in mind the guidance of the Court that, because the nature of extraschedular consideration requires that the disability picture be unique and not contemplated by the rating schedule, there logically is no guidance as to the specific rating that should be assigned in any particular case. Kuppamala, 27 Vet. App at 443, n. 7 (citing Floyd v. Brown, 9 Vet. App. 88, 97 (1996)). For the following reasons, an extraschedular rating of 10 percent, but no higher, effective February 1, 2017, for right foot DJD, with os perineum syndrome is warranted. In this case, the evidence of record shows that the Veteran's right foot disability is not adequately depicted by the schedular rating criteria and his right foot pain has interfered with his employment. To this extent, the criteria for rating foot disabilities do not adequately contemplate the Veteran's right foot symptoms that caused marked interference with employment. Specifically, at his January 2016 VA examination and January 2020 Board hearing, the Veteran asserted when he experienced foot pain, he missed work on average of 10 days per year to rest his foot. The Veteran has reported symptoms of sharp shooting pain in his right foot that goes up his calf, and agitation with his left knee and hip. He indicated that he could not sleep on his left side due to the pain. The above evidence reflects that there is interference with employment to a degree beyond that which is contemplated by the schedular rating of 30 percent, i.e., marked interference with employment. See 38 C.F.R. § 4.1 (Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability'). Thus, this is an exceptional case where the criteria in VA's Rating Schedule are inadequate, and an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service connected disability is warranted. 38 C.F.R. § 3.321 (b)(1). The general rating for foot injuries provide for a maximum schedular rating of 40 percent for actual loss of use of the foot. The Board finds that, from February 1, 2017, an extraschedular rating of 10 percent for right foot DJD, with os perineum syndrome is warranted. This will result in a combined rating of 40 percent, see 38 C.F.R. § 4.25, which will approximate the maximum schedular rating that would be warranted for actual loss of use of the foot under the general rating formula. As the preponderance of the above evidence reflects that an extraschedular rating higher than 10 percent is not warranted, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. TDIU The Veteran seeks a TDIU, claiming that the he is unable to work as a result of his service-connected disabilities. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 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(a), 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 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, 529 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. § §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation as having two components: one economic and one noneconomic. 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. The non-economic component includes consideration of: Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran's service-connected disabilities are as follows: right upper extremity ulnar sensory motor mononeuropathy with right little finger limitation of motion, rated as 30 percent disabling; right foot DJD, with os perineum syndrome, rated as 30 percent disabling; anterior cruciate instability due to left knee DJD status post left knee injury with skin graft, rated as 20 percent disabling; limited and painful motion due to left knee DJD status post left knee injury with skin graft and scar, rated as 10 percent disabling; right wrist hamate, scaphoid, and ulna changes and DJD, rated as 10 percent disabling; right index finger limitation of motion due to right hand chronic strain, tendinopathy, and arthritis, rated as 10 percent disabling; right long finger limitation of motion due to right hand chronic strain, tendinopathy and arthritis, rated as 10 percent disabling; metatarsalgia, left foot, rated as 10 percent disabling; lumbar spine strain and degenerative arthritis, rated as 10 percent disabling; right little finger limitation of motion due to right hand chronic strain with tendinopathy, rated as 0 percent disabling; and right ring finger limitation of motion due to right hand chronic strain, tendinopathy and arthritis, rated as 0 percent disabling. The Veteran is in receipt of a combined 80 percent rating since February 1, 2016 and a combined 70 percent rating as of June 01, 2019. Therefore, he meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU. Thus, the next question for consideration is whether his service-connected disabilities prevents him from securing and following substantially gainful employment. At his January 2020 Board hearing, the Veteran testified that he was forcing himself to retire, due to his right foot and left knee disabilities, as he could not do his job anymore. The possibility that the Veteran would retire his job because of his service-connected disabilities raised the issue of entitlement to a TDIU. The Board notes that a substantially complete VA Form 21-8940 is generally required to establish entitlement to TDIU because it gathers relevant and indispensable information regarding a claimant’s disabilities and employment and educational histories. When VA Form 21-8940 has not been submitted, VA must make a decision on the issue of TDIU based on the available evidence of record and may deny entitlement. The Board will therefore decide the claim based on the evidence of record. In June 2020, the agency of original jurisdiction (AOJ) sent a letter to the Veteran and asked him to complete a formal application for a TDIU and to report his education and employment history and earnings. A copy of the appropriate form (VA Form 21-8940) was included with the letter. The Veteran failed to respond to the letter, did not submit any completed VA Form 21-8940, and has not otherwise provided any information pertaining to his education, employment history, or earnings. To date, the Veteran has not completed and submitted VA Form 21-8940. The failure to complete the VA Form 21-8940 deprives the Board of information as to the Veteran’s employment history, educational history and training, and income information necessary to properly address a claim for TDIU. While VA is obligated to assist a claimant in obtaining evidence necessary to substantiate his or her claim, 38 U.S.C. § 5103A (a), “[t]he duty to assist is not always a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Veteran did not respond to a request for relevant information regarding his employment and education history. Consequently, there is no reliable evidence of record specifying whether the Veteran was unemployed or employed during the period on appeal. The February 2016 VA Foot examination indicates that the Veteran’s left foot disability impacts his ability to work, since prior to surgery he could walk 100 feet before stopping to rest due to foot pain. He was told he could return to work when he was fully functional as there is no light duty work assignment for his job. A May 2019 VA Foot examination report show the Veteran’s left foot disability impacts his ability to work. He is a mail handler for the USPS and has to be on his feet about 7 hours a day minimum, which aggravates his feet pain. A May 2019 VA Hand and Finger examination report shows the Veteran’s finger disabilities impacts his ability to work, as he has difficulty lifting, grabbing, and carrying bags of mail and boxes. A May 2019 VA Back examination report shows the Veteran’s back disability impacts his ability to work, as he has to be on his feet and does a lot of heavy lifting when sorting mail, which aggravates his back pain. A June 2019 VA Hand and Finger examination report shows the Veteran’s right finger disabilities impacts his ability to work, as he has limited ability to grasp objects that would also interfere with lifting. A June 2020 VA clinical record notes the Veteran’s status as employed. A July 2020 VA clinical record notes the Veteran retired from the USPS. The above evidence does not show or even demonstrate a reasonable possibility that a veteran is unemployable by reason of his service-connected disabilities. Although the Veteran said he was forcing himself to retire, and the Board does not question the Veteran’s credibility and appreciates the impairment caused by his service-connected disabilities, it must decide this case based on the law, regulations, and evidence, consistent with the pro-claimant nature of the system. The evidence of record is not clear that he did in fact leave the job or when he did so. That information was requested on the VA Form 21-8940, as was information regarding his education, employment history, or earnings. The Veteran has not provided the information that would enable the Board to conclude that he meets the criteria for a TDIU. Although the Board can piece together some of his employment information from various treatment records found in the claims file, the Veteran has never provided VA with specific information regarding his employment, education, and training, to include whether he is still gainfully employed. Under 38 U.S.C. § 5107 (a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the “support” requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). The Veteran has not done so in this case. For the foregoing reasons, the preponderance of the evidence is against entitlement to a TDIU. The benefit of the doubt doctrine is therefore not for application in this instance, and the claim for a TDIU must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.