Citation Nr: 21013955 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-35 445A DATE: March 11, 2021 ORDER Entitlement to TDIU, to include on an extraschedular basis prior to February 21, 2020, exclusive of the period of temporary total evaluation, is granted. FINDING OF FACT Throughout the appeal period, the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU, to include on an extraschedular basis prior to February 21, 2020, exclusive of the period of temporary total evaluation, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1979 to December 1979 and from October 1989 to February 1992. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board denied the Veteran’s claim for entitlement to a TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veteran’s Claims (Court). In a December 2019 Memorandum Decision, the Court vacated the Board’s January 2019 denial and remanded the issue to the Board for readjudication. In September 2020, the Board remanded the claim for TDIU for a referral to the Director of Compensation Services for extraschedular consideration; it is once again before the Board. Entitlement to TDIU The Veteran contends that he is entitled to a TDIU. A Veteran may be awarded TDIU benefits if he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1115 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). VA may consider the level of education, special training, and previous work experience in making this determination, but may not consider the Veteran's age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2019); see also Ferraro v. Derwinski, 1 Vet. App. (1991). TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. If there is only one such disability, it shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16(a) (2019). At the outset, the Board notes that the Veteran’s service-connected disabilities did not meet the minimum percentage requirements for a TDIU for the period prior to February 21, 2020, as he was in receipt of a 50 percent rating for bilateral foot pain with plantar fasciitis and a 20 percent rating for hemorrhoids. His combined disability rating was 60 percent disabling. See 38 C.F.R. § 4.16(a). The Board notes the Veteran’s bilateral foot pain with plantar fasciitis was rated at 100 percent from May 12, 2014, until September 30, 2014, following his May 2014 surgery. As such, that period of temporary total evaluation is excluded from the TDIU claim on appeal. From February 21, 2020, the Veteran has met the minimum percentage requirements for TDIU as he is currently rated at 50 percent rating for bilateral foot pain with plantar fasciitis, a 20 percent rating for hemorrhoids, a 20 percent rating for right lower extremity inferior calcaneal nerve neuropathy, and 20 percent for left lower extremity inferior calcaneal nerve neuropathy with a combined disability rating of 80 percent. The Veteran has one disability ratable at 40 percent or more, and a sufficient additional disability to bring the combined rating to 70 percent or more. Thus, the Board is considering entitlement to a TDIU on an extraschedular basis prior to February 21, 2020, and on a schedular basis thereafter. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board will therefore consider whether the Veteran’s service-connected disabilities render him unable to secure and maintain substantially gainful employment. This involves consideration of two components: an economic component involving an occupation outside of a protected environment earning more than marginal income, and a non-economic component involving the Veteran’s ability to secure and follow such employment. See Ray v. Wilkie, 31 Vet. App. 58 (2019). VA may consider the Veteran’s level of education, special training, and previous work experience in making this determination, but may not consider age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. (1991). Medical evidence describing the effect of each disability on the Veteran's occupational functioning is crucial to permit the Board to arrive at an assessment of employability. 38 C.F.R. § 4.1. However, the determination of whether service-connected disabilities are of sufficient severity to produce unemployability is ultimately the Board's to make. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 C.F.R. § 4.16(a) as support for the conclusion that the applicable statutory and regulatory provisions "place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Therefore, the Board will review the medical evidence in the context of the other evidence of record prior to reaching a conclusion regarding employability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). VA referred the Veteran’s claim to the Director of Compensation Services for extraschedular consideration in September 2020. Although the Board is required to obtain the Director of Compensation Services decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16 (b)). Here, in December 2020, the Director denied entitlement to an extraschedular TDIU. Accordingly, the Board has jurisdiction over the issue of entitlement to an extraschedular TDIU. The Director denied extraschedular TDIU, citing that the preponderance of the medical evidence of record does not show that the service-connected condition prohibits the Veteran from obtaining or maintaining gainful employment. The Board disagrees for reasons that are outlined below. A review of the Veteran’s employment history reveals he has primarily worked in jobs involving physical labor, including a truck driver, forklift attendant, shipping and receiving weigher, and production assembler. See Social Security Administration records. The Veteran’s highest completed level of education is high school. See December 2014 VA Form 21-8940. A February 2014 VA foot conditions examiner found the Veteran’s service-connected foot disability impacted his ability to work. The examiner described the impact and indicated that the Veteran worked in a factory on his feet for up to 10 hours at a time, which caused his feet to be tender and painful by week’s end. In July 2014, the Veteran’s VA treating podiatrist indicated the Veteran continued to have permanent neuropathic pain. As a result, the podiatrist stated that the Veteran may not be successful at being employable. The Board is aware the December 2014 VA examiner indicated the Veteran’s foot disability did not impact his ability to perform occupational tasks; however, the physical examination revealed the Veteran had pain contributing to functional loss in the feet. Moreover, the examiner additionally indicated the Veteran used a wheelchair and cane on a regular basis. In August 2014, the Veteran’s VA podiatrist indicated that he did not feel the veteran would be employable with a standing job as the pain in his feet would be permanent. A February 2015 VA examiner noted that based on a conversation with the Veteran’s VA treating podiatrist, the Veteran “should be able to perform sedentary work.” The Board notes no definite opinion was rendered. In April 2015, the podiatrist indicated that he could not speak to the Veteran’s ability to perform either a sit down or other types of jobs. A December 2019 VA foot conditions examination found the Veteran’s service-connected foot disability impacted his ability to work. The VA examiner noted the Veteran used to drive a truck and worked in a factory standing eight to ten hours a day. The examiner indicated the Veteran used a wheeled walker. The examiner opined the Veteran could only stand for approximately fifteen minutes before he had to sit down. The Veteran was also not able to run, go up the stairs or ladders, or climb. The examiner noted the Veteran’s report that he could not sense where his feet are and at times the pain was so bad, he wanted to cry. A December 2019 medical examiner opined on the Individual Unemployability Statement that it is at least likely as not that the Veteran is unable to perform sedentary work as a result of his service-connected conditions. A July 2020 VA peripheral nerves examination found the Veteran’s neuropathy impacted his ability to work. The examiner opined the Veteran’s occupational capacity was compromised due to persistent foot pain and loss of position sense resulting in persistent falls. SSA found the Veteran was disabled as of April 2013 due to disabilities including his service-connected plantar fasciitis and neuropathy. See SSA determination. While not binding, the Board finds the SSA determination to be persuasive and positive evidence in favor of the claim. As indicated previously, the Director of Compensation Service opined the Veteran’s service-connected bilateral foot pain with plantar fasciitis does not preclude him from obtaining or maintaining gainful employment. However, the opinion contains factual inaccuracies, and the medical examiners have provided contrary opinions. The Director reasoned that there had been a dramatic shift in the labor force over the last several decades and thus, there were many jobs that would only require light activity that a person with a high school education would be able to perform. The opinion then went on to state the Veteran had multiple years of college education and thus, he had an aptitude to learn new skills and the ability to alternate between positions that are less physically demanding jobs. The Director’s statement about the Veteran’s education level is factually inaccurate as the record indicates the Veteran’s highest level of education is high school. As such, the Veteran’s access to less physically demanding jobs is limited to positions which only require a high school diploma. Second, the Director noted the Veteran’s limitations could be “mitigated with adaptive equipment such as a sit/stand desk.” However, a December 2019 VA examiner specifically opined his service-connected disabilities render him unable to perform sedentary employment. Even if the Veteran obtained sedentary employment, a December 2019 VA examiner noted the Veteran’s condition required him to be in a wheeled walker at all times. The constant use of a wheeled walker indicates the Veteran has mobility issues and adaptive equipment such as a sit/stand desk would essentially be futile as he is unable to stand or move without assistive devices. Crucially, the Veteran’s foot disabilities produced such severe occupational limitations that he would be unable to work without accommodations, excessive absenteeism, or unscheduled absences that would most likely exceed those allowed by typical employers. Given the physical limitations outlined above, the Board finds for the period prior to February 21, 2020 and for the period since February 21, 2020, the Veteran is precluded from all non-marginal employment. The competent evidence indicates that he is unable to perform both active physical employment and jobs requiring long periods of standing or sitting. The physical limitations render the Veteran unable to obtain and maintain substantially gainful employment. The Board notes the Veteran’s work history involves physical labor, which VA examiners found was precluded by his disabilities. Additionally, the Veteran is precluded from sedentary employment given the severe pain and numbness, persistent falling, and regular use of a wheeled walker. The preponderance of the evidence therefore indicates that the Veteran’s service-connected disabilities render him unable to secure and maintain substantial gainful employment. TDIU is therefore warranted throughout the appeal period, to include on an extraschedular basis prior to February 21, 2020, exclusive of the period of temporary total evaluation under 38 C.F.R. § 4.16. K. L. WALLIN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board EJ Richardson 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.