Citation Nr: 21012508 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 07-38 648 DATE: March 4, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU), (excluding the period of temporary total disability based on convalescence from October 1, 2012 to December 31, 2012), on an extraschedular basis from November 1, 2009, is granted. FINDING OF FACT The evidence is in relative equipoise as to whether, as of November 1, 2009, the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment consistent with his education and experience. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for the assignment of TDIU on an extraschedular basis beginning November 1, 2009, are met. 38 U.S.C. §§ 5103A, 5107 (2012); 38 C.F.R. 3.102, 3.400, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1972 to June 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Veterans Law Judge during a March 2011 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This matter was previously before the Board on multiple occasions, with the first occasion in April 2011, wherein the Board remanded the issue as it was intertwined with the appeal for increase for his foot condition. The matter was before the Board again in August 2017 and August 2018 and the issue was remanded again as it was intertwined with the Veteran’s claim for increased rating for his service-connected foot disabilities. In the January 2020 Board decision, the Veteran was granted entitlement to a TDIU on a schedular basis from August 3, 2018. That decision also remanded entitlement to a TDIU on an extraschedular basis as there was evidence that the Veteran was unable to work due to his service-connected foot disabilities. The matter has returned to the Board for adjudication. The Veteran asserts that he is unable to work due to his service-connected foot disabilities. 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. 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, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In the alternative, if the Veteran does not meet the percentage requirements, but is nevertheless rendered unable to obtain or maintain substantially gainful employment by reason or one or more service-connected disabilities, the matter must be submitted to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). Under VA law, the Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation Service. Bowling v. Principi, 15 Vet. App. 1 (2001). 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 age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board must consider whether the Veteran's service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Here, the Veteran meets the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a) from August 3, 2018. As noted above, the Veteran was granted a TDIU on a schedular basis from August 3, 2018 by way of the January 2020 Board decision. It is important to note that the grant for the TDIU was based on the Veteran’s foot disabilities and his depressive disorder with anxiety disorder associated with bilateral pes planus. Prior to August 3, 2018, the Veteran was not service connected for his mental health disability. Thus, the question before the Board is whether the Veteran is entitled to a TDIU on an extraschedular basis prior to August 3, 2018 based on consideration of only his service-connected foot disabilities. Prior to August 3, 2018, the Veteran was combined to be 30 percent disabling from May 11, 2006 for his bilateral pes planus with hallux rigidus, status post arthroplasty of right foot digits 2 through 5. He was granted a 100 percent temporary rating for convalescence from October 30, 2006 to January 31, 2007. He resumed the 30 percent rating from February 1, 2007. The Veteran underwent another surgery for his feet and was granted a temporary 100 percent evaluation from September 23, 2009 to October 31, 2009. The Veteran was rated at a combined 50 percent rating from November 1, 2009. The Veteran’s bilateral pes planus was separated from his other foot conditions as of November 1, 2009. He was assigned a 30 percent for bilateral pes planus, a 10 percent was assigned for hammer toes 2-5, hallux valgus, hallux rigidus status post cheilectomy and Michell procedure with prosthesis, right foot and also assigned a 10 percent for hammer toes 2-4, hallux valgus, hallux rigidus status post bunionectomy and prosthesis, left foot. He underwent surgery again and was granted a temporary 100 percent rating from October 1, 2012 to December 31, 2012. The 50 percent rating resumed on January 1, 2013. He was a combined 70 percent from August 3, 2018. The Veteran submitted VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability in October 2006, however, he indicated that he was currently still working at the United States Postal Service (USPS) as a vending machine mechanic. The Veteran submitted another VA Form 21-8940 in February 2010 and indicated that he last worked on September 31, 2009. He noted that he had a high school education and did not have any other education or training since he was too disabled to work. In a February 2010 statement, the Veteran clarified that he retired from his job on October 31, 2009 because he could not stand long and specified that he can no longer work. He also stated that he has problems with both feet. He noted that he cannot walk for twenty minutes and must sit down because the pain is so great. In the August 2007 VA foot examination, the VA examiner stated that the Veteran is able to do his normal job, but that it is painful. The examiner also stated that his foot disabilities affect his ability to walk and he could only stand and walk for periods of time and has to take breaks, but he is able to function and work all day long. The Veteran reported in a July 2009 VA treatment record that he has tried four different types of inserts and orthotics with no relief of pain. He also indicated that he is employed by USPS and states that he is on his feet for large amounts of time. A February 2010 VA treatment records documented that the Veteran recently retired from the post office where he worked as a vending machine maintenance worker. He stated he is limited in the distance he can ambulate. His doctor completed a prescription so that he could obtain a handicap placard. He also noted that his feet are okay at rest, but weight bearing, and walking cause a lot of toe pain and he ends up having to rest for several days after one visit to Home Depot, for instance. See February 2010 VA treatment record. In March 2010, the Veteran reported that he is still having pain when he walks and rated it at an 8/10 when ambulating, but pain subsides when resting. See March 2010 VA treatment record. Also, in a March 2010 VA treatment record, the Veteran stated that he has tried numerous off-the-shelf inserts and ED shoes and that he could wear them for some time but then they would hurt his feet. At his March 2011 Board hearing, the Veteran testified that he retired from USPS because he went through so much pain with his feet and related surgeries, it was time for him to retire. He also noted that he had to drive all day while employed at USPS because he serviced five counties a day. See March 2011 Board hearing testimony at pgs. 17-20. The Veteran also testified that he was a mechanic his whole life and was not trained in anything else. He indicated that he could not do a desk job or computer job because he is “computer illiterate” and has never been trained for this. See March 2011 Board hearing testimony at pg. 21. The Veteran was afforded a VA examination in February 2012. He described constant and chronic pain to his feet bilaterally daily. The pain increased with prolonged standing or walking. The VA examiner found that the Veteran has pain on use of the feet and the pain was accentuated on use. There was objective evidence of marked deformity of both feet, marked pronation of both feet, and lower extremity deformity (bilateral hallux limitus and bilateral hammertoes) other than pes planus, causing alteration of the weight bearing line of both feet. The Veteran also had “inward” bowing of the Achilles’ tendon of both feet. The examiner noted that the Veteran’s condition does not impact his ability to work. In April 2013, the Veteran was examiner again by the VA. The VA examiner stated that the Veteran is not totally disabled from performing gainful sedentary employment. However, she stated that he would have difficult with any physical employment that required frequent standing or walking which would aggravate his feet. The Veteran complained of pain which he rates as 8/10 when he is on his feet for a long time. He stated that he experiences pain in his left foot when walking for short distances. He also complained of the left 4th toe under riding his 3rd which caused pain when walking. See July 2013 VA treatment record. In September 2013, the Veteran stated that his legs are killing him whenever he walks and that was just from walking from the garage to here. He thinks it is coming from his feet. See September 2013 VA treatment record. A November 2013 VA treatment record documented that the Veteran reported that he cannot walk more than 300 feet without the pain coming back. He stated that the pain is throbbing and says the most pain is at the toes. He rated the pain as a 2/11 today but admitted it can go up to a 10/10 when he walks on them. He also reported that he was given hammer toe pads to wear during his last visit and he only wore them for one day because they gave him too much pain the next day. The treating physician observed that there was fat pad atrophy noted to plantar feet bilateral. See November 2013 VA treatment record. The Veteran reported in August 2014 that he has pain in his toes bilaterally and has had multiple podiatric surgeries and he was told that there is nothing more that they can do for him. See August 2014 VA treatment record. The Veteran was examined by the VA in December 2015 for his foot disabilities. He had diagnoses of flat foot, hammer toes, hallux valgus, and hallux rigidus. The Veteran specified that he has chronic pain in both feet with prolonged standing and walking. He has chronic dull achiness and at times, sharp pain. The examiner found that the Veteran’s diagnoses impacts his ability to perform any type of occupational task with physical work requiring prolonged walking and standing. The Veteran was seen at the VA in February 2016 where he continued to complain of ongoing bilateral foot pain currently rated at a 7/10. He noted aching, numbness, and throbbing of the feet. The Veteran reported chronic pain in his feet, primarily big toes, which started after his multiple foot surgeries and implantation of hardware. The treating physician noted that this pain does not appear to be neuropathic and instead appears to be related to his joint issues and post-surgical pain. See March 2017 VA treatment record. The Veteran was afforded another VA examination in August 2017. The VA examiner found that the Veteran’s foot condition impacts his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.) but that he can do sedentary work. The Board decision from January 2020 remanded the issue of extraschedular TDIU based on evidence that the Veteran cannot work due to symptomatology associated with his service-connected foot disabilities and referral to the Director of Compensation for extraschedular consideration under 38 C.F.R. § 4.16(b). Thereafter, in an October 2020 memorandum, the Director found that the criteria for TDIU on an extraschedular basis were not met. The Board notes that the Director's decision is not evidence, but, rather, the de facto Agency of Original Jurisdiction decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). The final determination with respect to the Veteran's entitlement to a TDIU is an adjudicatory, not a medical, function. In weighing the lay and medical evidence of record, as well as the Veteran's educational background and prior work experience, the Board finds that it is unlikely that the Veteran would have been able to find substantially gainful employment given his service-connected foot disabilities. The Veteran had indicated he was on his feet all day and had so much pain while walking. The only way to alleviate his pain was to rest. He retired from the USPS because he felt that he could no longer perform his duties due to prolonged walking and standing. The Veteran also stated that he was unable to perform a desk job or computer job because he was only trained to work as a mechanic. He has a high school education. Although some VA examiners noted that he was able to perform sedentary work, others also noted that he would not be able to perform any physical type of employment due to his service-connected foot disabilities. Based on a de novo review of the record, the Board finds that there is sufficient evidence to conclude that the Veteran was unable to secure and follow a substantially gainful occupation consistent with his education and occupational history due to his service-connected disabilities. When there is an approximate balance of positive and negative evidence regarding any issue material of the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5017; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). (CONTINUED ON NEXT PAGE) Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected foot disabilities in combination precluded him from engaging in substantially gainful employment. As such, the Board finds that the criteria for TDIU on an extraschedular basis are met from November 1, 2009, the date after he last worked. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.