Citation Nr: 21010229 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-01 084 DATE: February 24, 2021 ORDER Entitlement to a TDIU, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. At no point has the Veteran had a single service-connected disability rated as 60 percent, or one disability rated as 40 percent or greater with sufficient additional service-connected disability/ies to bring her combined evaluation to 70 percent. 2. The Veteran’s service-connected disability did not preclude her from obtaining and maintaining substantially gainful employment consistent with her level of education, prior work history and training. CONCLUSION OF LAW The criteria for entitlement to a TDIU, including on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25 REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 2005 to January 2008. This appeal arises from a January 2010 rating decision, denying a rating in excess of 10 percent for residuals of right ankle stress fracture, status-post tarsal tunnel release. An October 2014 rating decision then granted a separate evaluation for the right ankle, assigning a 20 percent rating for right lower extremity CRPS, effective from November 23, 2009, the date of the increased rating claim. In June 2018, the Board remanded the case to the AOJ for additional development and consideration. On remand, in an April 2020 rating decision, the AOJ increased the rating for the Veteran’s right lower extremity complex regional pain syndrome (CRPS) from 20 to 40 percent, effective from October 7, 2019; increased the rating for residuals of a right ankle stress fracture from 10 to 20 percent, effective October 7, 2019; and awarded a separate non-compensable rating for internal saphenous nerve involvement associated with right lower extremity CRPS, effective from October 7, 2019. In September 2020, the matter returned to the Board. At that time, the Board granted entitlement to a 20 percent evaluation for residuals of right ankle stress fracture prior to October 7, 2019. The Board also denied entitlement to a rating in excess of 20 percent since October 7, 2019 for residuals of right ankle stress fracture, entitlement to a rating in excess of 20 percent prior to October 7, 2019 for right lower extremity CRPS, status-post tarsal tunnel release, entitlement to a rating in excess of 40 percent for right lower extremity CRPS, status-post tarsal tunnel release since October 7, 2019, and entitlement to a compensable rating for internal saphenous nerve involvement, associated with right lower extremity CRPS. The Board remanded the issue of entitlement to a TDIU to VA’s Director of Compensation Service for extraschedular consideration. 1. Entitlement to a TDIU to include on an extraschedular basis. The Veteran maintains she is unemployed due to her service-connected CRPS of the right lower extremity. See November 2019 TDIU application. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability 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. § 4.16(a). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of one 60 percent disability or one 40 percent disability, the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term substantially gainful occupation is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. At no point has the Veteran met the schedular criteria for consideration of the TDIU. See September 30, 2020, Rating Decision Code sheet. Thus, the only way to establish entitlement to a TDIU is through extraschedular means. If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. 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. 38 C.F.R. § 4.16(b). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service (Director) for extraschedular consideration. Id. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In September 2020, the Board made the quasi factual finding that the Veteran’s service-connected disabilities may preclude her ability to maintain substantial gainful employment and, therefore, remanded the claim for referral to VA’s Director of Compensation Service for extraschedular consideration. Such was accomplished and an Advisory Opinion was issued by the Director in December 2020. The Court in Ray, has acknowledged, however, that the Board’s decision to refer a matter for extraschedular consideration is a quasi-factual finding and does not automatically bind the Board to award an extraschedular rating. Ray, 31 Vet. App. 58. At the time of the September 2020 Board remand, the factual determination was only made on whether the evidence suggested a possibility of an extraschedular award such that referral for an advisory opinion was warranted. The Board did not weigh the medical evidence, the economic factors, or the non-economic factors at that time. As will be outlined below, the Board now finds on closer examination of the record, to include the newly associated medical evidence, that an extraschedular TDIU award is not warranted. The Veteran reports she worked as a paralegal until her separation from service, and that she has been unemployed since February 2008. See November 2019 TDIU application. At her January 2010 VA ankle examination, the examiner commented on her occupational impairment that the Veteran reports she cannot even get hired for sedentary work as they consider her an increased liability due to concerns that she may fall and injure herself. The Veteran’s educational background includes a high school education, as well as 2 years of beauty school, where she specialized in nails. The Veteran has claimed that she has not worked since her discharge from service in 2008, during which she served as a Legal Services Specialist, with a civilian equivalent as a paralegal. An April 2008 VA examination noted that the Veteran was then employed at a movie theater. At this time, the Veteran reported difficulty walking, climbing stairs, shopping, driving a car, taking out the trash and mowing the lawn because of pain in the right ankle and foot. However, her gait and posture were normal, and there were no signs of abnormal weight-bearing. She did not require any assistive devices to walk. Private medical records dated from August 2008 to December 2009, reflect ongoing right ankle pain. She reported difficulties with her daily activities. See e.g. August 25, 2008, record from P.W., M.D. Numerous examinations reflect that the Veteran was never in any apparent distress. In November 2008, she underwent a tarsal tunnel release on the right, relating that it felt like her heel and foot were “on fire.” A January 2010 VA examination documents continued reports of pain. She was unable to stand more than 15 minutes without significant pain and edema. She had stopped driving due to pain, except for emergencies. She did not use assistive devices and was able to walk ¼ mile. Her gait was normal and there was no evidence of abnormal weightbearing. She was not then apparently employed but related that she could not get hired for sedentary work as any employer would consider her an increased liability in case she fell while walking. A June 2012 VA ankle examiner noted the Veteran’s report that she had to choose a profession that allows her to sit and that she received 2 years of beauty school education specializing in nails. In turn, the examiner commented that the Veteran would not be able to do any labor-intensive work requiring prolonged standing or walking but she would be able to perform sedentary employment. The examiner indicated that the “issue to resolve would be transportation otherwise this condition does not prevent her from sedentary employment.” An August 2014 VA examiner opined that, the Veteran would not be able to perform employment that required standing or walking for any extended periods of time. The examiner stated that the Veteran would be able to perform sedentary employment. The Veteran filed her formal TDIU claim in November 2019, stating that she had not worked since her discharge and had not received any further education after her discharge. However, as noted above there is indication that she worked following service, including at a movie theater, and that she attended beauty school for 2 years. An October 2019 VA examiner commented that the Veteran’s constant pain would limit her ability to concentrate in any work setting. The examiner related that the Veteran would have to change positions frequently and would be very limited with walking and standing. A December 2019 VA examiner commented that the Veteran was limited to weight bearing less than 15 minutes at a time, which may be repeated after several minutes of rest for the right ankle. The examiner stated that the constant nature of the Veteran’s pain would severely limit her concentration. The Veteran was able to manage her activities of daily living, although they took longer to accomplish. Recognizing the discrepancies in work and education provided by the Veteran, in October 2020, VA sent the Veteran a letter requesting a completed VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), to obtain relevant employment information. However, the Veteran did not respond. Based on the foregoing, the Board finds that entitlement to TDIU on an extraschedular basis is not warranted. At the outset, it is unclear whether the Veteran was unemployed since her discharge, or whether any possible employment was marginal or protected. The Veteran’s failure to provide a complete employment history and to identify previous employers deprives the Board of information as to the Veteran’s complete work history, skills, training, and income information necessary to address a claim for TDIU. The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Even assuming the Veteran was not employed during the applicable period, the entirety of the evidence does not support a finding that she was unable to obtain or maintain substantially gainful employment. The Director found in a December 2020 advisory opinion that an extraschedular TDIU award was not warranted. The Board is not bound by the Director’s December 2020 findings and, as outlined above, conducted an independent de novo review of the evidence. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extra-schedular consideration). The Board is also not bound by its prior remand directive to refer the matter for Director review. Ray, 31 Vet. App. at 58 (holding that the Board’s referral decision under 38 C.F.R. § 4.16(b) does not require the Board to award an extraschedular TDIU). As explained above, the Court recognized in Ray v. Wilkie that a referral decision under 38 C.F.R. § 4.16(b) is merely a quasi-factual finding based on a lower evidentiary threshold than for a grant of an extraschedular TDIU. Here, while the evidence at the time of the September 2020 remand has not materially changed, a closer examination of the evidence warrants a denial of the benefit sought. The evidence at the time of the September 2020 remand indicated that the Veteran’s service-connected CRPS of the right lower extremity had some occupational impact, such that the matter should be referred to the Director. The Board referred the matter to determine whether extraschedular TDIU could be granted, but specifically declined making any determinations at that time regarding employability. In rendering a closer examination of the evidence, the Board finds that the evidence does not support TDIU on an extraschedular basis. See Ray, 31 Vet. App. at 58. Rather the evidence shows that the Veteran had significant physical limitations, but her service-connected CRPS of the right lower extremity would not preclude the sedentary types of employment for which she has relevant training and experience, e.g. as a nail technician and as a paralegal. In Withers v. Wilkie, the Court noted that VA has not explicitly defined the meaning of sedentary employment. Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and considering each veteran’s education, training, and work history. Id. at 149-50. Here, the Veteran, has reported relevant education and qualifications to work as a nail technician, a job that requires sitting. Thus, looking at economic considerations, she had the education, training, skills, and work history to perform substantially gainful work in the beauty field and in the legal field as a paralegal, stemming from her in-service training and experience. Both are fields of work that are not labor-intensive and do not require prolonged standing or walking. The Board considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. at 58. The Veteran has stated that her right lower extremity pain was increased with prolonged standing, and walking and VA examiners have determined that the disability would limit work in labor-intensive positions and with prolonged standing and walking. As such, she could not likely engage in any position that required prolonged standing. However, she could likely engage in sedentary work as described above; as suggested by the Director in her assessment, her CRPS of the right lower extremity would preclude some occupations where prolonged standing or walking was required, but not most occupations, including as a nail technician for which she has relevant training. The Board also notes that the Veteran has reported impairment when driving. Thus, while she may not be able to perform a job that requires driving, she is not precluded from working an otherwise “sedentary” job that would not require driving. As far as transportation concerns, the Veteran remains able to drive, albeit with significant pain. Even if she could not drive, there are many possible means of public transportation such that she could get to a place of employment. The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, supra. The Veteran however was not service connected for any disability which impacts her mental functioning. She also has not contended that his service-connected CRPS of the right lower extremity affected here mental abilities, notwithstanding impairment of concentration from pain. The Board does not doubt that the Veteran’s service-connected CRPS of the right lower extremity caused impairing symptomatology. The evidence does not support, however, that this disability precluded substantially gainful employment. In light of the Veteran’s past work history, training, and skills and in light of the medical evidence in this case, the Board finds the Veteran was capable of substantially gainful work. Accordingly, entitlement to a TDIU on an extraschedular basis is not warranted. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.