Citation Nr: 21009514 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 13-09 903 DATE: February 22, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran does not have one service-connected disability rated as 60percent disabling, a combined disability rating of 70 percent or more with at least one-service-connected condition rated as 40 percent disabling; and his service-connected conditions otherwise do not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU, to include on an extraschedular basis, are not met. 38U.S.C. §§1155, 5107; 38C.F.R. §§3.102, 3.340,3.341, 4.3, 4.16(a)–(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1963 to August 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A Board hearing was conducted via videoconference with the RO in Muskogee, Oklahoma. A transcript of this hearing is contained within the electronic claims file. See March 10, 2016, Hearing Transcript (Tr.). In a May 2016 decision, the Board remanded this claim for the RO to reconsider entitlement to TDIU in light of the Board’s award of service connection for other conditions. When the claim was returned to the Board, it again remanded, in its February 2018 decision, the TDIU claim for referral to the Director, Compensation Service (Director), so that the claim could be considered on an extraschedular basis, as the Veteran otherwise did not meet the schedular criteria for TDIU (discussed below). In March 2020, the Director recommended that the Veteran’s claim for TDIU on an extraschedular basis be denied. In an April 2020 decision, the Board denied the claim; however, it later vacated that decision and remanded the matter back to the agency of original jurisdiction (AOJ) because Counsel did not receive the most recent supplemental statement of the case (SSOC). See October 21, 2020, Board Decision at 2–3. In December 2020, another SSOC was issued, which properly was addressed to Counsel. Thus, the Board finds that VA substantially has complied with prior remand directives and now will adjudicate the merits of the Veteran’s appeal. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A finding of total disability is appropriate 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)(1), 4.15, 4.16. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34–35 (1994). Where the schedular rating is less than total, a total disability rating for compensation may 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 disabilities, provided that, if there is only one such disability, that disability shall be ratable at 60 percent or more. If there are two or more disabilities, then there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. Marginal employment, however, is not considered substantially gainful employment. Marginal employment includes situations in which an individual’s annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual’s earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The United states Court of Appeals for Veterans Claims (CAVC) has defined what it means to “secure or follow” substantially gainful employment. The Court held that this phrase includes both an economic and non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The economic component requires that a veteran’s income be lower than the federal poverty threshold. The non-economic component includes assessing a veteran’s education, training, and work history, with the ultimate question being whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. For the period relevant to this appeal, service connection is in effect for residuals of a right ankle fracture, evaluated as 30 percent disabling; temporomandibular joint disorder, evaluated as 20 percent disabling; residuals of right wrist fracture, evaluated as 10 percent disabling; healed fracture of the left patella, evaluated as 10 percent disabling; healed fracture of the right patella, evaluated as 10 percent disabling prior to November 1, 2014, and as non-compensable thereafter; and scars and loss of teeth, both evaluated as non-compensable. The Veteran’s combined rating is 60 percent with the addition of the bilateral factor, and since his service-connected disabilities involve the lower extremities, they are considered as one disability for TDIU purposes. Even considering all of the orthopedic disabilities as one disability, the combined schedular rating criteria for consideration of TDIU under 38C.F.R. §4.16(a) still are not met because he does not have one service-connected disability with an evaluation of at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent with one disability rated at 40 percent. Thus, only consideration on an extraschedular basis is warranted. See 38 C.F.R. § 4.16(b). The Board does not have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). It may, however, determine that a particular case warrants referral to the Director, Compensation Pension, for extraschedular consideration under 38 C.F.R. § 4.16(b), which it did in this case. See February 15, 2018, Board Decision. The CAVC has held that “the decision to refer a claim for extraschedular consideration is a factual finding that doesn’t bind the Board when it later decides whether to award an extraschedular rating.” Ray, 31 Vet. App. at 65. This is so because the initial extraschedular referral decision under § 4.16(b) addresses whether there’s sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. The Director then performs his or her duties and, if the Director denies an extraschedular rating, the Board then, reviewing that decision without deference and bearing in mind the benefit of the doubt standard, decides whether the preponderance of the evidence nevertheless shows that a veteran is unemployable by reason of his or her service-connected disabilities. Id. at 66. The CAVC also was clear: The Board’s obligation to provide an adequate statement of reasons or bases to support its decision also applies when the Board reviews the Director’s decision not to grant an extraschedular TDIU rating. Thus, the Board must ensure that it adequately explains its reasoning when a factual finding made at the referral stage comes out differently at the review stage. Some factors that may affect the Board’s ability to reach a different result or the adequacy of its discussion of reasons or bases include, but are not limited to, the certainty or complexity of factfinding in the initial referral decision and to the extent to which the record has changed since the referral decision. Thus, the referral decision can still be relevant at the award stage in certain circumstances. For example, where the Board finds referral appropriate because “it is beyond dispute” that a veteran was unemployable because of his service-connected disabilities, more explanation might be needed for a contrary finding than where the Board’s referral finding is more equivocal. It’s also possible that no amount of explanation may overcome the Board’s initial finding. Id. at 66–67. The Veteran was afforded a VA general medical examination in May 2013. The examiner assessed each of his service-connected disabilities and rendered an opinion as to the resulting occupational limitation of each disability. Specifically, the examiner stated that the right wrist disability limits lifting and repetitive wrist activity jobs, the right ankle disability severely restricts jobs requiring walking, climbing, and standing, such as his occupation of working as cemetery maintenance worker, his bilateral patella disabilities limit walking, squatting, and climbing jobs, and his scars have no occupational effect. In conclusion, the VA examiner stated that while the Veteran was significantly restricted from physical employment, he could perform desk work. A December 2013 VA medical center (VMAC) entry indicates that the Veteran remains active around his house and works in his shop on small engines. He claims that he can walk up four flights of stairs and goes dancing three nights per week without any pain. In a July 2014 private report entitled “Independent Medical Examination” submitted by the Veteran, Dr. E. noted that the service-connected right ankle disability caused instability of that ankle, difficulty standing, and required the use of a cane. Dr. E. also noted that he had not worked in 2012 when he could not get on a tractor due to his disabilities. Further, it is was noted that the bilateral knees, elbow, and right-hand disabilities also contributed to his inability to perform gainful activities. In September 2015, the Veteran underwent a VA examination for his service-connected knees. The examiner indicated that the Veteran’s knee conditions do not limit the Veteran’s ability to perform any type of occupational task. At his hearing, the Veteran testified how his current service-connected conditions limited his abilities to perform his prior occupational duties. See Tr. at 32–39. In March 2020, the Director submitted to VA her decision to deny the Veteran entitlement to TDIU on an extraschedular basis. While the Board is not bound by the Director’s conclusion, it does agree with her. The evidence of record shows that the Veteran’s service-connected disabilities do not preclude substantial gainful employment. While Dr. E. noted the limitations the Veteran experiences due to his service-connected conditions, that assessment does not align with the Veteran’s own statements just six months prior. The Veteran endorsed remaining active around his house, working in his shop on small engines, walking up four flights of stairs, and dancing three nights per week without any pain. This contradicts Dr. E.’s statement that the Veteran’s right ankle requires the use of a cane and that the Veteran has trouble standing. The Board finds that dancing three times per week is inconsistent with a severely debilitating right ankle and bilateral knee problem. Furthermore, the Board notes that the Veteran endorsed no problems ascending four flights of stairs and still participating in the care of his home and working on engines. The September 2015 examiner also indicated that the Veteran’s knees did not limit his ability to work. While the May 2013 VA examiner indicated that the Veteran’s conditions limit the Veteran’s ability to work, this also is refuted by the Veteran’s own statements as noted above. The Board finds most probative of whether the Veteran could maintain a substantially gainful occupation his own recitation of the activities in which he engages. Furthermore, while the Veteran is competent to report any pain he experienced while working, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), his former employer noted that he simply “retired,” and that the Veteran made no concessions to the employer regarding age or disability. See August 17, 2017, VA Form 21-4192. Based on this information, the Board does not find that the Veteran’s service-connected conditions render him unable to secure or follow a substantially gainful occupation, and his appeal for TDIU, to include on an extraschedular basis, is denied. See 38C.F.R. §4.16(a)–(b). The Board’s decision herein is not inconsistent with its original determination to refer the TDIU claim for extraschedular consideration. As noted, the referral determination is not a factual finding that binds the Board to later award the Veteran TDIU despite the Director’s determination. See Ray, 31 Vet. App. 65, 66. In its prior decision, the Board simply discussed the May 2013 and July 2014 medical evaluations, noting that “there is some evidence suggesting that the Veteran’s service-connected disabilities may render him unable to secure and follow substantially gainful employment.” February 15, 2018, Board Decision at 4 (emphasis added). Here, the Board has conducted an analysis, weighing the medical and lay evidence of record, assigning probative value accordingly. In line with Ray, the Board previously noted that there was a “reasonable possibility” of substantiating TDIU, remanding for referral, but now has determined that an extraschedular rating is unwarranted, explaining why it has deviated from that prior finding. See Ray 31 Vet. App. 65, 66–67. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.