Citation Nr: 21009517 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 19-22 245 DATE: February 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), on an extraschedular basis, is granted, subject to the regulations governing payment of monetary awards. FINDING OF FACT The Veteran’s sole service-connected disability, bilateral pes planus, rated 50 percent, is shown to result in functional impairment that precludes him from maintaining substantially gainful employment. CONCLUSION OF LAW An extraschedular TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from April 1954 to May 1956. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a February 2019 rating decision, which in relevant part denied a TDIU rating. In October 2019, a videoconference hearing was held before the undersigned; a transcript is in the Veteran’s record. In October 2019, the Board remanded the matter for additional development. [The October 2019 Board decision also dismissed (as withdrawn) a claim of service connection for chronic obstructive pulmonary disease (COPD). That matter is no longer before the Board.] Entitlement to an extraschedular TDIU rating under 38 C.F.R. § 4.16(b) is granted. Legal Criteria, Factual Background, and Analysis The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected bilateral pes planus, which has been rated 50 percent, throughout. A TDIU may be assigned where the schedular rating is less than total, when it is found that the veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more (service-connected) disabilities, provided at least one is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The sole 50 percent rating for the Veteran’s bilateral pes planus during the relevant period does not meet the 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU rating. However, where the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be considered when a veteran is nonetheless unable to maintain a substantially gainful occupation due to service-connected disability. 38 C.F.R. § 4.16(b). Here, the Board finds that the evidence demonstrates that the Veteran is unable to maintain a substantially gainful occupation due to his service-connected bilateral pes planus. At the October 2019 hearing, the Veteran testified that he has a 7th grade education and no additional education/training. He testified that his work history is as a truck driver, and he last worked about 25 years prior; he stopped driving a truck because he failed a DOT physical due to his bilateral foot disability. [Similar information was provided on VA Forms 21-8940 received in September 2009 and July 2017.] He testified that medical providers have deemed him a fall risk because of his feet. He also stated that he cannot travel (beyond his home and front yard) unassisted. When questioned by his representative and the undersigned about his ability to perform sedentary work, he explained that he does not have the experience or education to work with a computer. The undersigned acknowledged that the Veteran would be unable to perform work requiring standing or walking, and also acknowledged the Veteran’s report of being a hazard at a place of employment due to frequent falls. Medical records prior to the period on appeal show the Veteran was treated for falls on several occasions. In December 2012, he was brought to a hospital by a neighbor upon being found on the floor inside his house. In March 2015, he reported difficulty using a manual wheelchair in the community. He reported six falls in the prior year. He explained that he has a ramp to enter his house and that he uses a cane to ambulate inside. He was approved for a motorized scooter and a loader for his vehicle. An October 2016 VA treatment record notes a Morse Fall scale score of 50, indicative of high risk for falls. The Veteran reported that he fell four weeks prior, but did not hurt himself. Medical records during the period for consideration similarly show the Veteran is a high risk for falls. See January 1, 2018 and September 3, 2019 VA treatment records. A January 5, 2018 VA treatment record notes he fell twice in the prior week and had to call for help. A September 3, 2019 VA treatment record notes he has had “frequent falls for 4 or 5 years”; he reported that his falls are due entirely to pain in his feet. In a VA Form 21-4192 dated January 2010, the Veteran’s former employer reported that he last worked in 1999. While he was an employee, concessions were made to limit the scope of his employment to only driving a truck; there was no loading, lifting, or strenuous work requirement. His position was terminated due to “Physical Disability Multiple Joint condition.” On August 2017 VA (fee basis) foot conditions examination, the Veteran reported pain from his toes to his heels, and that he could not bend his toes. He reported that during flare-ups he cannot walk “some mornings”. The examiner opined that the bilateral foot disability impacts the Veteran’s ability to work because he has pain with prolonged walking and standing. In a January 2018 addendum, the August 2017 examiner opined that the Veteran’s bilateral foot disability would limit him to “a very light physical [job], with minimal walking or standing, or a sedentary job would be advisable, considering his pain in both feet.” On August 2018 VA foot conditions examination, the Veteran reported his pain level as 10/10, rising to 13/10 when he walks. He reported he was dependent on the use of a cane, walker, or wheelchair at all times. He also reported that he falls a lot and must use a walker to maintain balance when walking. On examination, the examining nurse practitioner noted that pain causes functional loss with walking, standing, and bearing weight. She opined that the Veteran’s bilateral pes planus impacts his ability in walking, standing, bending, bearing weight, climbing, lifting, traversing stairs, and dorsiflexing; she also noted that the disability increases his risk for falls and injury. In September 2020, the RO referred the instant case to the Director, VA Compensation Service, for consideration of an extraschedular TDIU, with the recommendation that the evidence was against the claim. In November 2020, the Director determined that the available evidence did not support the Veteran’s contention that his service-connected disability alone prevented all types of substantive work activities, including in sedentary, and that an extraschedular TDIU was denied. The Board has considered the determinations by the RO and the Director, but notes that while both discussed the impact of non-service connected disabilities (which are not for consideration in the instant claim), neither discussed the contemporaneous VA treatment records which show a consistent history of falls/being at a high risk for falls, or the full extent of his difficulty with mobility (such as the need for motorized scooter outside of the home). The Board deems the contemporaneous treatment records to have substantial probative value in support of this claim. The Board has also considered (and found particularly significant in this matter) the Veteran’s limited education and occupational experience. He has a very limited (7th grade) education, and has had no additional education or training. His occupational experience for 15 years prior to when his employment ended was exclusively as a truck driver. He contends, and the medical opinions in the record reasonably support (particularly when considered with the contemporaneous treatment records throughout), that he is unable to maintain regular substantially gainful occupation consistent with his education and work experience based solely on his service-connected bilateral pes planus (and irrespective of co-existing non-service-connected disabilities, which likewise may impact on his ability to work). In short, despite having only a 50 percent rating for his sole service-connected disability, the Veteran’s educational/occupational background and his current medical record constitute persuasive evidence that the functional impairment associated with the service-connected bilateral pes planus precludes him from engaging in regular substantially employment consistent with his education and work experience. Accordingly, the evidence supports the award of a TDIU rating on an extraschedular basis. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.