Citation Nr: 21011169 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 10-37 976 DATE: March 1, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) based solely on service-connected residuals status-post fracture right 5th metatarsal (right foot disability) is denied. FINDING OF FACT The Veteran’s service-connected right foot disability alone does not preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU based upon service-connected right foot disability alone are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1988 to June 1992. He is recipient of the Combat Action Ribbon, among other decorations. Service in Southwest Asia is indicated by the record. This matter comes before the Board of Veterans’ Appeals on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 10 percent for service-connected residuals status-post fracture right 5th metatarsal with nerve impingement (hereinafter ‘right foot disability’). The Veteran disagreed with the assigned rating and subsequently perfected a timely appeal. In his September 2010 VA Form 9, the Veteran requested a Board hearing; however, despite being sent proper notice, he did not appear at the scheduled hearing, did not present good cause for failure to appeal, and did not request that the hearing be rescheduled. Therefore, the hearing request was deemed to be withdrawn. 38 C.F.R. § 20.704(d). In pertinent part, a January 2019 Board decision denied entitlement to a rating in excess of 10 percent for service-connected right foot disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2019 Order granting a September 2019 Joint Motion for Remand (Joint Motion), the Court vacated the Board’s January 2019 decision and remanded the matter of entitlement to an increased rating for service-connected right foot disability, as well as the matter of entitlement to a TDIU based solely on the service-connected right foot disability for further development in compliance with the directives specified in the Joint Motion. In a January 2020 decision, the Board granted a 30 percent rating throughout the appeal period and denied an extraschedular rating for the service-connected right foot disability. In addition, the Board remanded the matter of entitlement to a TDIU based solely on the right foot disability for referral to the Director of Compensation Services pursuant to 38 C.F.R. § 4.16(b) in compliance with the Joint Motion. As will be discussed below, a review of the record reflects substantial compliance with the Board’s Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was issued in October 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to a TDIU based solely on service-connected right foot disability. Total disability will be considered to exist 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. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2016); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this matter, the Veteran has been awarded entitlement to a TDIU based upon his service-connected disabilities from October 27, 2005 to November 1, 2008 and from June 11, 2010 to May 13, 2013. He has additionally been awarded entitlement to special monthly compensation (SMC) at the rate specified under 38 U.S.C. § 1114(s) based upon PTSD with depressive disorder rated at 100 percent and other service-connected disabilities (specifically, limitation of right knee extension, degenerative disc disease of the low back, medial meniscus tear of the right knee with degenerative changes, right hip strain, residuals, status post fracture of the right fifth metatarsal with nerve impingement, right knee instability) independently ratable at 60 percent or more from June 11, 2010 to March 1, 2011 and from May 13, 2013. However, in the September 2019 Joint Motion, the parties determined that the evidence of record demonstrated the Veteran left at least one job due to functional limitations related to his right foot disability. They therefore determined that, although the Veteran currently has a disability rated as 100 percent, the failure of the January 2019 Board decision to adjudicate the reasonably raised TDIU issue as part and parcel of the right foot disability claim was prejudicial because of the potential for the Veteran to seek SMC pursuant to 38 U.S.C. § 1114(s). Therefore, the parties indicated that the matter should be remanded in order for the Board to adjudicate the issue of TDIU based on his right foot disability alone. Accordingly, in the January 2020 decision, the Board remanded the claim of entitlement to TDIU based solely on the service-connected right foot to the RO for referral to the Director of Compensation Services pursuant to 38 C.F.R. § 4.16(b). As indicated above, the claim was returned to the Board following the issuance of the October 2020 SSOC. The Board will therefore consider herein the matter of entitlement to a TDIU based solely on the service-connected right foot disability. As noted in the January 2020 Board decision, the Veteran is assigned a 30 percent rating for the service-connected right foot disability throughout the appeal period. As such, his service-connected right foot disability did not meet the minimum threshold requirements for consideration of schedular TDIU under 38 C.F.R. § 4.16(a). Nevertheless, TDIU is warranted under 38 C.F.R. § 4.16(b) if it is established by the evidence of record that service-connected disabilities render the Veteran unable to secure and follow substantially gainful employment. Although the Board may not assign an extraschedular rating in the first instance, it may assign one on appeal of a determination by the Director of Compensation Service (Director). Here, the case was forwarded to the Director in response to the Board’s January 2020 remand. As will be discussed below, in October 2020, the Director concluded that TDIU on an extraschedular basis was not warranted as the evidence showed that the severity of the Veteran’s right foot disability did not render him unable to secure and follow a substantially gainful occupation due to his service-connected disability. The Board conducts de novo review of the Director’s decision denying extraschedular consideration under 38 C.F.R. § 4.16(b) and the Director’s decision is in essence the decision of the AOJ and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) ([T]he Director’s decision [pursuant to 38 C.F.R. § 4.16(b) is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence). For the following reasons, the Board finds that entitlement to a TDIU due solely to the service-connected right foot disability is not warranted. The Veteran filed a claim of entitlement to an increased rating for service-connected right foot disability in December 2008. In a December 2008, Dr. E.T. reported that, despite aggressive medical therapy, the Veteran’s right foot problems have never improved. Private treatment records dated in February 2009 documented his report of chronic foot pain with history of right 5th metatarsal fracture. Other private treatment records dated in February 2009 noted that the Veteran has intermittent episodes of throbbing with sharp, stabbing right foot pain. In a February 2009 letter, Dr. E.T. stated that, since his initial injury, the Veteran has experienced intermittent swelling of the right foot along with chronic pain and weakness. He continues to have significant discomfort in the plantar area of the foot and is unable to stand for prolonged periods of time. In a February 2009 statement, the Veteran reported that he is unable to stand for long periods of time, which was a requirement of his previous employment as a barber. The Veteran was afforded a VA examination in February 2009 at which time the examiner confirmed a diagnosis of residuals of fractured right 5th metatarsal. The Veteran endorsed symptoms of pain, stiffness, fatigability, weakness, and lack of endurance. He denied swelling, heat, and redness. He did not report flare-ups of right foot symptoms. The examiner noted that the Veteran is able to stand for more than one hour, but less than three hours. He is able to walk one to three miles. He uses orthotic inserts. There was no evidence of painful motion, swelling, instability, weakness, or abnormal weight-bearing of the right foot. There was tenderness; specifically, he experienced mild pain to touch at the distal 4th metatarsal space. The examiner reported that the Veteran’s right foot disability has no significant occupational effects and he has no problems with daily activities. The examiner reported that the Veteran is employed as a police officer. In a subsequent February 2009 statement, the Veteran reported, “over the past years, I have changed careers due to chronic foot, knee, and back pain. I owned a barber shop for over fifteen years, but in 2006 I closed the barbershop to change [to] a career that would not require prolonged standing.” He further stated, “[n]ow at my current job, I have missed several days of work due to either my lower back or right foot.” See the Veteran’s statement dated February 2009. In a July 2009 letter, Dr. D.S. stated, “[b]ecause of the patient’s difficulties in ambulating due to both chronic low back and foot pain, he has been placing undue strain on other joints, especially in the right lower extremity. In a December 2009 statement, the Veteran reported that he began working full-time as a police officer in 2007. He stated, “I have worked full time for two years that was unsuitable employment for my disabilities. I am having difficulties with disabilities and will have to resign from my position [in] January 2010.” See the Veteran’s statement dated December 2009. He further noted, “I have been off duty several times this year due to previous injuries.” Id. The Veteran was afforded a VA examination in April 2010 at which time the examiner documented his report of right foot pain. The examiner noted that the Veteran works part-time and has lost approximately 12 weeks of time from work in the last twelve months due to knee surgeries and mental health time. He indicated that the right foot does not have any muscle deficits, just pain on palpation and squeezing. The examiner indicated that the Veteran’s right foot disability does have significant occupational effects; specifically, decreased mobility and pain. The examiner indicated that the Veteran has been assigned different duties at work. A June 2010 employment questionnaire indicated that the Veteran was employed as a police officer from September 2007 to January 2010. In a June 2010 statement, the Veteran indicated that his work as a police officer is unsuitable due to his PTSD. The Veteran submitted a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) in July 2010 at which time he reported that he last worked from 2007 to June 2010. He indicated that he cannot work due to PTSD and he lost over a year of work due to illness. In a July 2010 statement, the Veteran indicated, “[f]or several years, I worked as a barber, with serious back pain. I had to change that career to a more sedentary position.” He further stated, “I work[ed] as a police officer for a short time because of stress and my sciatic nerve would be pinched due to prolong[ed] sitting on patrol, I had to resign.” See the Veteran’s statement dated July 2010. In a September 2010 statement, Dr. B.W. reported that the Veteran’s “history of injuries and chronic pain with continue to have an adverse effect on his future employment.” He continued, “I recommend that [he] only works part time due to his inability to endure prolonged sitting or standing associated with his prior work duties as a barber and as a highway patrol officer.” See the statement of Dr. B.W. dated September 2010. In a September 2010 letter, Dr. E.T. noted the Veteran’s multiple service-connected disabilities and reported, “I believe these conditions have affected [the Veteran’s] employment and his ability to sustain suitable employment and therefore I recommend he only works part-time.” He continued, “[t]he lower back, right foot and knee pani affected his first career as a barber due to prolonged standing. The second career was affected, also a mostly sedentary position as a highway patrol due to prolonged sitting.” In a September 2010 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), the Veteran reported that he is unable to work due to back pain and PTSD symptoms. He reported that he last worked in June 2010. He indicated that he completed four years of college. The Veteran was afforded a VA examination of the right foot in March 2017 at which time the examiner confirmed a diagnosis of residuals, status-post fracture for the 5th metatarsal. The examiner noted the Veteran’s report of chronic aching right foot pain, which has progressively worsened over time. The Veteran denied flare-ups of foot symptomatology. The examiner noted that the Veteran’s ability to stand is limited to 10 to fifteen minutes, and his ability to walk is limited to one to two miles. The Veteran exhibited moderate pain on palpation along the right foot. The examiner reported that the Veteran’s right foot disability chronically compromises weight-bearing. The Veteran exhibited pain on weight-bearing, disturbance of locomotion, and lack of endurance. The examiner reported that the Veteran’s right foot disability does impact his ability to work; specifically, decreased mobility and standing. In an August 2017 medical opinion, a VA examiner reported that the Veteran “would have NO sedentary limitations as sitting takes all the pressure off of his feet and he is able to stand for at least twenty minutes per his report, and walk for enough to get to and from his vehicle for work.” The examiner continued, “[d]ue to the lack of ANY OBJECTIVE FINDINGS, feel that HE IS CERTAINLY ABLE TO PERFORM BOTH SEDENTARY TASKS AND LIGHT MANUAL LABOR.” [Emphasis as in original]. The Veteran was afforded a VA examination of his right foot in August 2017. The examiner noted the Veteran’s report of sharp right foot pain that shoots up the back of his leg. The Veteran reported that he cannot run due to pain up the back of his right leg with numbness and swelling. He also described difficulty walking long distances. He exhibited pain on physical examination; specifically, pain that contributes to functional loss. The examiner noted that the Veteran also has pain on weight-bearing, swelling, disturbance of locomotion, and lack of endurance. The examiner additionally reported that the Veteran’s right foot disability does impact his ability to work. The examiner explained, “[n]o work with prolonged standing or walking past a half mile due to foot pain. No high impact work such as jumping, running, or jogging. Walking at own pace. No other limitations. No sedentary limitations.” In an October 2017 VA medical opinion, the examiner reported that the Veteran “is capable of sedentary work, but can walk only with an assistive device and is unable to perform any work concerned with walking, lifting, standing, or climbing.” As noted above, the claim of entitlement to a TDIU due solely to the service-connected right foot disability was referred to the Director of Compensation Services for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). In an October 2020 advisory opinion, the Director noted that the Veteran’s “right foot condition shows there is limitation to walking and standing as a result of right foot pain, and the Veteran reports increased pain and nerve type pain when he is walking on uneven terrain.” The Director continued, “[p]hysical examinations reported moderate pain on palpation to the 5th metatarsal shaft and styloid process with pain to the peroneal brevis tendon at the insertion to the 5th metatarsal styloid process and the 4th interspace along the intermetatarsal nerve.” The Director further noted that the right foot disability limits his “standing to 10 to 15 minutes and limits walking to one to two miles. The Veteran reports difficulty with weight-bearing and reports lack of endurance associated with the foot condition.” The Director noted, “[e]xamination reports show there is no limitation to sedentary tasks.” The Director concluded, “[w]hile the foot condition results in pain with limitations to standing and walking, the evidence does not show the foot condition alone is so disabling as to cause the Veteran to be unable to maintain a substantially gainful occupation.” See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted). Significantly, the Board concludes that the clinical evidence does not indicate that the Veteran was unable to obtain and maintain gainful employment due solely to his service-connected right foot disability. The Board acknowledges the functional impairment resulting from the Veteran’s right foot disability; specifically, chronic right foot pain, weakness, intermittent swelling, pain on palpation, and limitations in walking and standing. However, the evidence does not indicate that the Veteran was unable to obtain and maintain gainful employment due solely to his service-connected right foot disability. Notably, the Veteran’s VA and private treatment providers did not indicate that he demonstrated an inability to obtain or maintain employment due to his right foot symptoms alone. While not discounting the significant effect that the service-connected disability had on the Veteran’s employability, the Board finds that such are adequately compensated at the currently assigned level. Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) & Van Hoose, supra. (Continued on the next page)   The evidence of record does not reflect that the Veteran’s service-connected right foot disability manifested symptoms of such severity as to impact his employability beyond what is contemplated by the assigned schedular rating. The severity of the Veteran’s service-connected symptomatology was specifically contemplated by assigned evaluation. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Critically, for the above reasons, the evidence of record does not support a conclusion that his service-connected right foot disability alone made him unemployable; thus, entitlement to a TDIU on an extraschedular basis is not warranted. Id. at 1354 (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). In short, the evidence of record demonstrates that the Veteran’s service-connected right foot disability does not alone render him unable to secure or follow a substantially gainful occupation. Although he is shown to experience significant functional impairment, the most probative evidence of record reflects that such impairment is due to his other service-connected physical and mental disabilities. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim. The benefit-of-the-doubt rule does not apply, and the issue of entitlement to a TDIU due solely to his service-connected right foot disability is denied. See 38 U.S.C. § 5107. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.