Citation Nr: 21012184 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 13-33 775A DATE: March 3, 2021 ORDER Entitlement to a rating of total disability due to individual unemployability based upon service-connected disorders (TDIU) is granted. REMANDED Entitlement to special monthly compensation (SMC) based on loss of use of the left foot is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the evidence is at least evenly balanced to support a finding that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a rating of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1965 to May 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions issued November 2012 and April 2014 by separate Department of Veterans Affairs (VA) Regional Offices (RO). By way of background, the Veteran’s claims were previously before the Board on March 22, 2018. This Board decision denied the Veteran’s claims for SMC on the bases of the need for regular aid and attendance and of housebound status; however, the claims for SMC based on the loss of use of the left foot and for TDIU were remanded. See BVA Decision (Mar. 22, 2018). The Veteran’s Motion for Reconsideration of the denials was received in June 2018, see Motion for Reconsideration (rec’d June 11, 2018), and was denied in September 2018, see BVA Decision (Sept. 13, 2018). These claims are accordingly final and no longer in appellate status. Since the most recent remand, the Agency of Original Jurisdiction (AOJ) undertook some development as to the remanded claim for a TDIU, but not for SMC as is still in appellate status. The Veteran was issued a Supplemental Statement of the Case (SSOC) as to TDIU only on December 22, 2020. The Board takes jurisdiction over the claims accordingly. The Board acknowledges that the Veteran submitted a Request for Higher-Level Review, see VA Form 20-0996 (rec’d Feb. 18, 2021), attempting to duly opt-in to the Appeals Modernization Act (AMA) after issuance of the SSOC. However, the appeal had already been activated at the Board and is therefore no longer eligible for AMA opt-in. Accordingly, the Board will undertake appellate review of the case. For the claim of TDIU, the Board concludes that jurisdiction is proper under 38 C.F.R. § 4.16(b) because even though the Veteran does not satisfy the criteria for schedular eligibility, the claim has been properly referred for extraschedular consideration, and the Board would not be rendering a ruling on an extraschedular basis in the first instance. For this claim only, the Board grants the Veteran’s claim for a TDIU. The Board construes this grant of the TDIU as a full grant of the benefit sought on appeal; therefore, the Veteran is not prejudiced by any failure of substantial compliance with previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On the other hand, a remand is required for the remaining claim for SMC, because no SSOC has been issued with respect to that issue, see 38 C.F.R. § 19.31; Stegall, supra, and also because the claim for SMC is inextricably intertwined with the granted TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). To the extent that further appellate action may be required in the Legacy system, the Board reminds the Veteran and his attorney that upon remand to the AOJ or issuance of a subsequent SSOC, they may have another opportunity to request Higher-Level Review for SMC. This appeal has been advanced on the Board’s docket on account of advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to a rating of a TDIU is granted. The Veteran contends that his service-connected disability renders him unemployable. The Veteran’s only service-connected disability is his left foot status post-amputation of three toes (second, third, and fourth) with involvement of the second metatarsal, which has been rated as 20 percent disabling effective August 29, 1991. 38 C.F.R. § 4.71a, Diagnostic Code 5172. The Board acknowledges that the Veteran has never satisfied the schedular criteria for a TDIU, see 38 C.F.R. § 4.16(a). Since the last remand, the Veteran’s claim for a TDIU was referred for an independent medical opinion, see VA Exam (Sept. 27, 2018), and the matter was referred to the Director of Compensation Services, see Correspondence (May 7, 2020); VA Memo (Dec. 15, 2020). As such, the Board has jurisdiction to award TDIU after referral for extraschedular consideration. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board notes that the record contains multiple medical opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).  When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board will consider each of these opinions below. It is the established policy of the Department of Veterans Affairs 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. Id. at § 4.16(b). The above-mentioned 20 percent rated left foot disability is the Veteran’s only service-connected disorder. Even though the Veteran has never met the schedular criteria for TDIU under 38 C.F.R. § 4.16(a), the Veteran is eligible for a TDIU on an extraschedular basis after referral to the Director of Compensation Services. If a veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). It follows that the Board now has jurisdiction to adjudicate the issue on its merits, as the Director has already made its required initial determination. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-7 (1996). The key question at issue is whether the Veteran’s service-connected foot disorder, in and of itself, has rendered the Veteran unable to secure for follow gainful employment during the period under review. The Board accepts the Veteran’s contentions that his education is limited to Grade 11, and his only vocational experience is as a welder, but that his medication required to manage his foot pain (which includes hydrocodone) is at least 50 percent likely to render him unable to maintain employment. See generally VA Exam (Sept. 27, 2018), supra; VA Form 21-8940 (rec’d Apr. 29, 2014 ). The Board notes that while VA prescribed opioid medications were discontinued during the appeal period, a June 2020 VA treatment note indicates that the Veteran was seeing a community provider and urine drug test was positive for non-prescribed opioids. The question of employability is ultimately a legal one, not a medical one. The evidence, as described and discussed above, appears to be as such: after a March 2018 remand, a September 2018 examiner indicated that the Veteran’s associated foot pain and associated medication render him unemployable, and a May 2020 memorandum recommended that the Director of Compensation Service grant TDIU on an extraschedular basis, see Correspondence (May 7, 2020), supra; however, the Director nonetheless denied the claim on the basis that there is no evidence that “sedentary” labor or else employment not involving heavy machinery is also precluded, see VA Memo (Dec. 15, 2020), supra. However, the Board notes that this Veteran’s occupational history, as detailed both in his Social Security Administration records and his Application for Increased Compensation Based on Unemployability (VA Form 21-8940), includes work as a welder or fitter only and that there is no evidence of past work that could be considered sedentary in nature. The question before the Board is whether the Veteran is unable to obtain and maintain gainful employment consistent with his education and past work history, not whether the Veteran is able to obtain and maintain gainful employment in any type of job in the economy. The Board is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant’s case. See Mariano v. Principi, 17 Vet. App. 305 (2003). The Board resolves all reasonable doubt in the Veteran’s favor. The claim for entitlement to a TDIU on an extraschedular basis due to residuals of a service-connected left foot disorder status post amputation of three toes (second, third, and fourth) with involvement of second metatarsal must be granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to SMC based on loss of use of the left foot is remanded. The Board denied the Veteran’s claims for SMC based on aid and attendance and on housebound status on March 22, 2018, but the Board remanded the remaining claim for SMC based on loss of use of the left foot. The Veteran was only issued a SSOC as to TDIU in December 2020, but was never issued a SSOC as to SMC based on loss of use of the left foot issue. The Board concludes that it is precluded from issuing a final determination; therefore, this claim is remanded to afford substantial compliance with all previous remand directives to the Veteran, and to ensure that he is afforded all due process consideration. Stegall, supra; Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); 38 C.F.R. § 19.31. The matter is REMANDED for the following action: Issue a Supplemental Statement of the Case (SSOC) as to the issue of entitlement to special monthly compensation for loss of use of the left foot. The SSOC must address all pertinent evidence added to the record since a previous March 22, 2018 Board remand. Then, and only after the issuance of the SSOC, the issue should be returned to the Board for further appellate consideration. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.