Citation Nr: 21009004 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-00 105A DATE: February 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected residuals of a left malleolus fracture have precluded him from securing and maintaining gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1960 to February 1964. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision. This matter was last before the Board in September 2020, when it was remanded for referral of the Veteran’s claim for entitlement to TDIU to the Director, Compensation Service, for extra-schedular consideration. VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). The sole fact that a veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). The Veteran in this case has not met these schedular requirement at any point during the appeal, as his current ratings consist of a 20 percent evaluation for residuals of a left malleolus fracture and noncompensable hearing loss. Because it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director, Compensation Service (Director) for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). The Board cannot assign an extra-schedular rating in the first instance, but must specifically adjudicate whether to refer a case to the Director for consideration of an extra-schedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)). The Board did so in its September 2020 decision, in which it remanded the issue of TDIU for the Director to consider an extra-schedular rating. Section 4.16, in contrast to extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1) does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. VAOPGCPREC 6-96 (August 16, 1996). In a December 2020 advisory opinion, the Director determined that entitlement to a TDIU on an extra-schedular basis was not warranted. The Director acknowledged medical evidence, including a May 2017 VA examination, showing the Veteran’s service-connected ankle disability impairs prolonged sitting, standing, ambulating, driving, climbing stairs/kneeling, and squatting, twisting and bending motions, but determined that these impairments do not render him unable to perform sedentary employment. Concerning this determination, the Board is not bound by an adverse determination by the Director regarding extra-schedular entitlement to a TDIU. The United States Court of Appeals for Veterans Claims (Court) has determined that the Director’s decision is in essence a decision by the Agency of Original Jurisdiction (AOJ) and is no different than a Regional Office’s decision in terms of its effect on the Board’s jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). Furthermore, the Board finds that the Director’s determination that TDIU on an extra-schedular basis is not warranted is not persuasive, as the Director did not provide any meaningful discussion of the Veteran’s work history and education level or any of the evidence the Veteran presented regarding his ability to follow gainful employment. The Veteran’s statements submitted to VA and a September 2020 Form 21-8940, Application for Increased Compensation Based on Unemployability, describe his educational and occupational background. According to these reports, he has a high school education with no other training noted since that time. Following military service, the Veteran worked as a police officer until he retired early in March 2012 because pain in his left lower extremity rendered him unable to perform his job duties. The Veteran has similarly reported in private treatment records that he was forced to stop working by his ankle pain. Since that time, the Veteran has worked part time as an instructor at a community college, where he teaches a law enforcement course for 26 hours every other month. He indicates this pays about $3,500 per year, and the Veteran’s representative has asserted that there is no opportunity for this or a similar teaching position consistent with the Veteran’s background to be a full-time job. As acknowledged by the Director, a May 2017 VA examiner reported functional impairment due to the Veteran’s left ankle disability manifests as chronic pain with decreased ability to focus, decreased mobility, decreased motion, difficulty with sitting, driving, standing, walking, stairs, kneeling, squatting, twisting, and bending. These findings are consistent with the findings of an earlier December 2014 VA examination. Based on this evidence and granting the Veteran the benefit of reasonable doubt, the Board finds that the evidence of record is in support of the Veteran’s claim for TDIU. The credible supporting evidence, both medical and lay, shows his service-connected residuals of a left malleolus fracture have limited his ability to work. Since he was last employed full-time in March 2012, he has maintained part-time employment as a community college instructor, teaching a course related to his previous line of work and commensurate with his experience and training, but this employment has been periodic and does not provide adequate compensation to be considered gainful. Moreover, given the limitations imposed by the Veteran’s ankle, to include the limitation on prolonged sitting and standing, it does not appear the Veteran would be able to maintain a full time teaching position as this would require significantly longer periods of standing and sitting. Despite the Director’s assessment that the Veteran is not prevented from obtaining and performing sedentary employment, the medical evidence of record indicates his condition impairs prolonged sitting and standing, as well as interferes with his ability to focus and concentrate. Furthermore, the Veteran’s educational and occupational background does not appear to qualify him to obtain employment in a sedentary position that would accommodate his disability even if he could perform the duties of a sedentary position with the limitations imposed by the service-connected disabilities. For these reasons, the Board finds that entitlement to a TDIU on an extraschedular basis is warranted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, 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.