Citation Nr: 21011471 Decision Date: 03/02/21 Archive Date: 03/01/21 DOCKET NO. 14-29 404 DATE: March 2, 2021 ORDER For the period prior to July 14, 2018, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Prior to July 14, 2018, the Veteran did not qualify for a TDIU. CONCLUSION OF LAW Prior to July 14, 2018, the criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1967 to July 1970. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2017. In March 2018, the Board denied a disability rating higher than 30 percent for bilateral pes cavus and remanded the service connection for a lumbar spine disorder, bilateral leg fractures, and entitlement to a TDIU. The Veteran appealed the increased rating denial to the Court of Appeals for Veterans Claims (Court), which in January 2019 granted a Joint Motion for Partial Remand (JMPR). In an August 2018 rating decision, the RO granted service connection for lumbosacral strain with arthritis (claimed as low back condition) with right lower extremity radiculopathy. As that was a full grant of the claim, that matter is no longer before the Board. In January 2019, the RO granted a TDIU, effective July 14, 2018. As such, only the period prior to July 14, 2018 is before the Board. In September 2019, the Board denied an increased rating for pes cavus and remanded the service connection and TDIU issues. In a February 2020 decision, the Board denied service connection for a right leg fracture (right leg disorder) and a left leg fracture with knee replacement (left leg disorder) and a TDIU prior to July 14, 2018. In October 2020, the parties to a joint motion for partial remand (JMPR) vacated the part of the February 2020 Board decision that denied a TDIU prior to July 14, 2018. 1. For the period prior to July 14, 2018, entitlement to a TDIU. In the January 2020 informal hearing presentation, the Veteran’s representative argued that a TDIU is warranted on an extraschedular basis prior to July 14, 2018. Since the October 2020 JMPR, the Veteran indicated that he had received a scooter from VA in October 2020. Such records would not be relevant to the current appeal, as the period under question is prior to July 14, 2018. As such, the Board finds it unnecessary to unduly delay the Veteran’s claim and remand to obtain such records. As noted above, the Veteran was already in receipt of a TDIU at the time he received the scooter and for over a year prior to that time. The VA medical records from the period prior to July 14, 2018 are already associated with the claims file and have been considered by the Board. To qualify for a total rating for compensation purposes, the evidence must show that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. In an October 2020 JMPR, the parties found that the Board had failed to adequately discuss the impact of the Veteran’s education on his ability to perform substantially gainful work. Although the Board had noted that the Veteran had attended the National Tractor Trailer school, it had made no mention of his other educational history, including evidence showing that the highest level of education was high school. Second, the Board did not state it understood the phrase “unable to secure and follow substantially gainful employment” to mean as it pertains to TDIU and should apply the guidance in Ray v. Wilkie. Specifically, the Board should address the evidence that the foot disability impacted his ability to work in that it may cause difficulties with “activities requiring prolonged standing, walking, running, climbing stairs and ladders.” The Board should also consider the evidence indicating that “[b]ack pain limits prolonged sitting and standing and bending.” Under Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court of Appeals for Veterans Claims (Court) interpreted the phrase “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to have two components: one economic and one noneconomic. The economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. As for the noneconomic component, the Secretary himself states that “determining eligibility for TDIU requires more than determining the presence or absence of employment producing income exceeding any particular threshold,” and “the ultimate inquiry is instead on the individual claimant’s ability to secure or follow that type of employment.” Thus, in order to fully clarify our interpretation that the regulation has both an economic and noneconomic component, we also provide guidance as to the meaning of a veteran’s ability to “secure and follow” such employment. It further indicated that attention must be given to (a) history, education, skill, and training, (b) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issues, and (c) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447 (2009). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A high rating is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. See id. The above notwithstanding, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16. Therefore, if a veteran fails to meet the schedular requirements for a TDIU, an extraschedular rating may nevertheless be considered where a veteran is unemployable due to service-connected disabilities. Prior to July 14, 2018, the Veteran was service connected for bilateral pes cavus (30 percent) and lumbosacral strain with arthritis (10 percent), for a combined 40 percent disability rating. Prior to September 17, 2013 (the effective date for the grant of service connection for the lumbosacral disability), the Veteran was only in receipt of a 30 percent disability rating for pes cavus. The Board also notes that the RO has effectively denied a TDIU in the first instance. He did not meet the minimum schedular criteria for eligibility to be considered for TDIU under the provisions of 38 C.F.R. § 4.16(a). In the November 2019 supplemental statement of the case, the RO determined that the Veteran’s case did not show that extraschedular consideration was warranted. In a March 2011 statement, the Veteran reported that now that he is older his feet are impacting standing and walking, which impacted prior work as a truck driver and security guard. Social Security Administration (SSA) records also noted prior experience truck driving and security work and noted that he was now unable to work due to fractures of his lower limbs and left knee arthritis – those disorders are not service-connected. In a May 2013 statement, he reported that he was now fully unemployed. In his July 2013 TDIU application, the Veteran reported he was unable to work due to his two broken legs, and first became unable to work in March 2013. He indicated that he had attended a National Tractor Trailer School. During his July 2017 Board hearing, he stated that “when I was working my, my boss laid me off because I couldn’t lift things and I could not stand long on, on my duties at the auto parts store.” The March 2011 VA examiner noted that the service-connected pes cavus caused decreased mobility and that the Veteran reported that he has difficulties driving a standard truck. His usual occupation was working at a car auction and he was starting a new job delivering parts. The June 2014 VA podiatry examiner found that the Veteran’s foot disability did not impact his ability to perform occupational tasks, such as walking, lifting, and sitting. A November 2017 VA examination noted the Veteran’s reports regarding his back “I cannot sit for long period of time, I have to get up and walk around.” An April 2018 VA examiner found that the pes cavus had functional limitations including difficulty standing or walking for prolonged periods. VA medical records document that the Veteran has continued to work, at least part time, through the appeal period. A March 2011 record documents that the Veteran had reported that he can work part time or full time depending on how much he earns, but he cannot exceed the limits under Social Security. They further document that the Veteran received vocational assistance, with a September 2014 record showing a goal of finding transportation careers that were physically appropriate due to inability to stand for long periods and other medical issues. Subsequent records document seeking light duty part time driver or graphic design work, such as in February 2015. January, May, and November 2017 records documented possible positions sought such as a shuttle driver, a car driver at an auto dealership, and a courier. The Board finds that such examples of occupational positions would allow work within the Veteran’s limitations, such as those reported in the JMPR - for the feet of “activities requiring prolonged standing, walking, running, climbing stairs and ladders,” as well as, limitations for the back including “[b]ack pain limits prolonged sitting and standing and bending.” Such positions are further within the Veteran’s education background as having a high school education and attending the National Tractor Trailer school, and his past experience of working as a driver. The Board thus finds that such positions are within the history, education skill and training of the Veteran, as well as, his physical ability (both exertional and non-exertional), and his mental ability to perform such activities (as the Veteran has not indicated mental limitations due to the feet or back during that time period and is not service connected for a psychological disorder during that time period). Thus, under the economic and noneconomic analysis under Ray, the Veteran was not unable to secure and follow a substantially gainful occupation. Prior to July 14, 2018, the preponderance of the evidence indicates that the service-connected lumbar or pes cavus disabilities did not preclude him from securing or following a substantially gainful occupation. The record documents numerous positions sought by the Veteran and within his work experience as a driver that conform to the limitations of his service-connected disabilities, to include reported problems regarding standing, walking, heavy lifting, and driving a standard truck. The VA examiners have not indicated further functional limitations that would preclude such work. There is no other competent evidence of record that contradicts the VA examiners’ determinations as to functional impairment, which are predicated on a clinical examination of the Veteran. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, as noted above, the Veteran himself has indicated that he was limited to part time work more to ensure he continued to receive SSA benefits than due to an inability to perform full-time work. Although not dispositive as to the unemployability finding here, his SSA disability benefits are based on his nonservice-connected bilateral leg fractures and knee disability. SSA did not find him unemployable due to any service-connected disability. This evidence also weighs against finding that his service-connected disabilities alone prevented him from securing and follow substantially gainful employment prior to July 14, 2018. Accordingly, there is no competent and credible evidence of record that the Veteran is precluded from securing or following substantial gainful employment solely due to his service-connected disabilities. For these reasons, the Board finds that the criteria for 38 C.F.R. § 4.16(b) referral for extraschedular TDIU are not met, and the appeal for entitlement to a TDIU is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.