Citation Nr: 21012230 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-08 606 DATE: March 3, 2021 ORDER Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability is denied. FINDING OF FACT The weight of the evidence of record is against a finding that the Veteran’s service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION On initial review of this case the Board remanded the issue of a TDIU to the Agency of Original Jurisdiction (AOJ) for appropriate development and then referral to the Director, Compensation Service (Director) for consideration of a TDIU on an extraschedular basis. See 01/26/2018 Remand BVA. The AOJ did as directed, the Director denied a TDIU, and the case has been returned to the Board for further appellate review. See 01/07/2021 Rating Decision; 02/10/2021 VA Form 8. The Board finds substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a TDIU is denied. Service connection is in effect for a right ankle strain, status postoperative, rated at 20 percent; left ankle strain rated at 20 percent, plus the bilateral factor for both; and, hemorrhoids, status postoperative, rated 20 percent, for a total combined rating of 40 percent as of the beginning of the appeal period in August 8, 2011, see 08/08/2011 VA 21-4138, and 50 percent from November 30, 2012 forward. See 01/07/2021 Rating Decision – Codesheet; see also 38 C.F.R. § 4.25. Legal Requirements TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person 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 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. §§ 3.340, 3.341, 4.16(a). Where the combined rating percentage requirements are not met, as in this case for the period in question, entitlement to the benefits may be nonetheless considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director, all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). Where a claimant does not meet the percentage requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a total disability evaluation based on individual unemployability under 38 C.F.R. § 4.16(b) in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Where there is evidence of unemployability, however, the Board must refer the claim to the Director for extraschedular consideration, which is what the Board did in January 2018. As noted earlier, the Director denied a TDIU. Discussion In Wages v. McDonald, 27 Vet. App. 233 (2015); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009), the Court of Appeals for Veterans Claims (Court) held that the Board’s review of the Director’s decision is essentially de novo, as the Director’s review is neither binding on the Board nor evidence against the Veteran’s claim. Wages, 27 Vet. App. at 236 (“On its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance.”). After the January 2018 Board remand, the Court promulgated a key decision on the issue of a TDIU on an extraschedular basis, Ray v. Wilkie, 31 Vet. App. 58 (2019). The first issue the Court resolved was the legal impact of a Board referral to the Director; specifically, whether it is a factual determination; and, if so, whether a Board referral mandates an allowance of a TDIU by the Board if the Director denies it. As to the first question, the Court held that a Board decision to refer a case to the Director is a factual determination but not one that binds the Board to an allowance on later review. Ray, 31 Vet. App. at 65. The Board must, however, explain what was involved in the referral, as well as what evidence may have impacted a denial after a referral. The Board understands the process to mean that each case is fact-specific and unique to the claimant in question. In this case, the Board remanded for referral simply because the Veteran asserted in written submissions and hearing testimony that he is no longer able to work, and because the Board was without authority to address the merits of the issue in the first instance. The Board did not remand for referral to the Director because it believed, on the record then before it, that the benefit should be granted. In Ray the Court promulgated a definition of substantially gainful employment as that term is used in 38 C.F.R. § 4.16(a). The Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one non-economic. The economic component 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. The non-economic component includes consideration of the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Court specifically noted that while it looked to the standards and guidelines used by the Social Security Administration (SSA), it did not adopt or impose those guidelines on VA. Ray, 31 Vet. App. at 72. At the August 2017 Board hearing (08/11/2017 Hearing Transcript), the Veteran indicated that he retired from the US Postal Service in October 2013 because he worked in the maintenance department, and the position would have kept him on his feet for significant periods. The Veteran also stated that due to his ankle disabilities, it has been difficult for him to leave his bed or his home. His home is two-stories high and he cannot go upstairs. He had fallen in his yard and had used a wheelchair. The Veteran also reported that his ankle disabilities do not allow him to go out with his grandchild. Id. Further, the June 2013 VA examination indicates that the Veteran’s sitting periods are limited to between fifteen and twenty minutes, with standing limited to ten minutes. 06/15/2013, VA Examination. In compliance with the Board remand the AOJ arranged examinations. A medical examiner opined that there is no occupational impairment due to the Veteran’s postoperative hemorrhoid disability. See 11/28/2018 C&P Exam, 1st Entry. The examination report (11/28/2018 C&P Exam, 2nd Entry) reflects that the Veteran complained of constant pain in both ankles, the right worse than the left. The right ankle ligament repair provided only short-term relief, and he still wears a right ankle brace. The examiner assessed the occupational impairment due to the bilateral ankle disability as involving limiting prolonged standing, walking, running, climbing, squatting, and kneeling. The disability did not limit sedentary work. Id., P. 9. The examiner did not explain or provide examples of the type sedentary work envisioned. The February 2020 examination report (02/13/2020 C&P Exam) reflects that the examiner opined that the Veteran’s ankle disability did not limit seated sedentary work. The Court in Ray held that an examiner or the Board must explain what is meant by sedentary employment when applied to the claimant’s specific case. First, the Board considers the Veteran’s training and experience. His formal claim for a TDIU reflects that he became disabled in September 2012, and that he last worked full time in October 2013. He has a high school diploma and one year of college. See 10/04/2019 VA 21-8940. In a later-dated form, the Veteran indicated that he did not leave his last job because of his disability. See 10/29/2020 VA 21-8940. The Board notes that the evidence of the nature of the Veteran’s past employment is minimal. All that it is shown in the record is that he worked for the Postal Service in maintenance. There is no evidence of any details of his employment, such as whether he was supervised, supervised others, or the type maintenance he performed. The Board may infer that he maintained or repaired equipment associated with the Postal System’s processing of mail matter. Nonetheless, the record is scant. The Board notes further that all opportunity to develop the record was extended to the Veteran. As noted earlier, the Veteran testified that he retired from the US Postal Service because his ankles precluded him from meeting the physical demands of the job, e.g., standing on a concrete floor all day. Further, there is no evidence that he has applied for disability benefits administered by SSA. The Board finds that the evidence of record shows that the primary issue the Veteran would face as far as future employment is concerned is chronic ankle pain, ankle weakness, and instability, all of which impact the ability to walk and stand. The Board notes that the Veteran has nonservice-connected disabilities which likely will have significant impact on his ability to meet the rigors of full-time employment. They are a lumbar spine disorder; sleep apnea; frostbite residuals of the hands, fingers, ears, and toes; gastrointestinal ulcers; and, an acquired mental disorder, variously diagnosed as a major depressive disorder. See 01/07/2021 Rating Decision – Codesheet. There also is evidence that he has diabetes, at times uncontrolled. The Board is aware that the medical evidence indicates that the prognosis for improvement of the right ankle is poor, and that while the Veteran’s provider has recommended surgery on the left ankle, there is no indication that he is favorably disposed to that option. See 04/07/2016 Non-Government Facility; Hearing Transcript, P. 4. In making this decision, the Board views sedentary employment as including answering the telephone, taking and passing on messages, applying basic computer and other administrative skills such as maintaining a calendar. While the Board is mindful that decisions may not be made on the absence of evidence, the Board notes again that the Veteran does have a year of college, and he did have the ability to learn a maintenance skill. Any limitation on his ability to learn a new, sedentary skill, would be due to nonservice-connected pathology. The Board also notes a 2018 entry in the Veteran’s outpatient records reflecting his report that he was riding a stationary bike for 15 to 20 minutes a day, and that he planned to start a program of walking. The issue related to weight control and seeking to get the Veteran’s diabetes under control. See 11/09/2018 CAPRI, P. 2. (Continued on the next page)   The Board notes the Director’s observations, or views, on the dynamics of the current nationwide work environment but also notes that no evidence was cited to support those views. Additionally, as the Director noted, the Veteran may well qualify for accommodations under the American Disabilities Act. Nonetheless, the Board finds that while the evidence of record shows that the Veteran clearly is no longer physically able to perform his past employment, the preponderance of the evidence is against a finding that his bilateral ankle disability precludes him from obtaining and maintaining any substantially gainful sedentary employment as the Boar has defined it. 38 C.F.R. § 3.340, 3.341, 4.16(b). Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.