Citation Nr: 21014625 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 14-27 767 DATE: March 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to July 10, 2014 is denied. Entitlement to schedular TDIU after July 10, 2014 is granted. FINDINGS OF FACT 1. Prior to July 10, 2014, the Veteran’s service-connected disabilities have a combined rating of 50 percent and do not preclude securing and following substantially gainful employment. 2. On and after July 20, 3014, the Veteran’s service-connected disabilities have a combined rating of 80 percent and preclude securing and following substantial gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU on an extraschedular basis have not been met prior to July 10, 2014. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). 2. The criteria for entitlement to a TDIU on a schedular basis have been met after July 10, 2014. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1996 to January 1997. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such 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 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). 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). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; VanHoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. VanHoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board notes that the Veteran is not qualified on a schedular basis for this claim prior to July 10, 2014. Here, the Veteran is service-connected for the following: bilateral plantar fasciitis at 10 percent prior to July 10, 2014, and 50 percent from July 10, 2014; a back strain condition at 20 percent from March 7, 2011; bilateral stress fractures in both legs at 10 percent from January 20, 1997; calcaneal spur, osteoarthritis and new growth of bones in the left ankle at 10 percent from November 17, 2011; and calcaneal spur, osteoarthritis and new growth of bones in the right ankle at 10 percent from November 17, 2011. Prior to July 10, 2014, the Veteran’s combined evaluation is 50 percent. As of July 10, 2014, the Veteran’s combined evaluation is 80 percent and there is at least one disability that is rated at 40 percent. Prior to that time, the Veteran does not meet the criteria for a schedular TDIU, but extraschedular TDIU must still be considered. Initially, the Board notes that the Veteran’s employment status throughout the appeal period is unclear. In a July 2012 application for increased compensation based on unemployability, the Veteran reported that she last worked in March 2011. The Director of Compensation noted in her decision, however, that the information from the Veteran’s most recent employer indicated that the Veteran had been employed with them until September 2012. The record shows the Veteran graduated from high school and received some college education. According to VA treatment records, her employment history included experience as a civil machine operator in service and working at a tuna canning factory and as a sewing machine operator at a garment factory following service. Pursuant to the Board’s October 2020 remand, the Director of Compensation Service reviewed the evidence of record and in December 2020 and January 2021 decisions, found that although the Veteran’s conditions would limit her ability to perform duties involving walking, standing, or carrying, the evidence did not support that the Veteran would be totally prevented from finding gainful employment. The Board is not bound by this decision and referring the matter for an opinion has no bearing on the ultimate outcome of the appeal. See 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). 1. Entitlement TDIU on an extraschedular basis prior to July 10, 2014 is denied. Prior to July 2014, the Veteran’s evaluations reflected moderate limitation of the right and left ankle motion, see 38 C.F.R. § 4.71a, Diagnostic Code 5271, and moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. Additionally, there was stress fractures of the bilateral legs, evaluated ast 10 percent disabling, for painful or limited motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5099-5003. Further, there was back strain condition evaluated at 20 percent, which reflects forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. February 2011 VA medical records noted that the Veteran complained of back pain when in a seated position and complained that her job required long periods of sitting. The Veteran underwent a VA examination in July 2011 to evaluate her bilateral leg fractures and back pain. The examiner noted decreased mobility, problems with lifting and carrying, weakness or fatigue, decreased strength, and pain. The examiner projected that the resulting work problems would be increased absenteeism, tardiness, and the assignment of different duties. The examiner related the Veteran’s back pain to her sitting for eight hours a day when she had been employed in a sewing factory. It was noted that the Veteran utilized an assistive device for walking and that her weight bearing joints were affected. The Veteran then underwent a VA examination in June 2012 to evaluate her musculoskeletal conditions. The examiner determined that the Veteran’s bilateral stress fractures of the legs limited her ability to walk long distances, carry, push, or pull more than 10 pounds. The examiner determined, however, that the Veteran was able to work in a sedentary job with reasonable accommodation. The examiner stated that the Veteran would need to change from sitting to standing position every 40 minutes with three to five minutes of rest and the use of an ergonomic chair. In October 2012 the Veteran received VA examinations for her spine and ankles. The examiner noted that the examiner’s back flexion activities would be limited, and that the Veteran was limited for prolonged standing and ambulation due to her ankle condition. A July 2013 private VA record noted that the Veteran was utilizing crutches for ambulation. July 2013 VA examinations for the Veteran’s hips and knees indicated that the Veteran was limited for standing or ambulation at a sedentary job. In September 2013 the Veteran underwent a VA examination to evaluate the feet. The examiner noted that the Veteran needed to work at a sedentary job and could not stand for longer than five consecutive minutes. In an April 2014 VA examination for ankle conditions, the examiner determined that the Veteran was limited to a sedentary job. Resolving all doubt in the Veteran’s favor, the Board finds that the evidence does not support the grant of entitlement to a TDIU on an extraschedular basis. Although the Board acknowledges that the Veteran would have had difficulty with work duties requiring physical exertion, they would not have been completely precluded from sedentary employment. The Veteran’s work history, which includes experience in a sedentary position, indicated that the Veteran was properly equipped to perform such work at that time. Several VA examiners determined that the Veteran would not have been precluded from sedentary work and that seated job duties with some modifications would have been possible. Although the Veteran had indicated in VA records that sitting could exacerbate back pain, the VA examiners determined that the Veteran was capable of seated work with occasional breaks or light accommodations. Although all the VA examiners noted that the Veteran would be limited in the kinds of employment duties she could perform, none of the examiners determined that the Veteran was incapable of substantially gainful employment. Review of the available evidence demonstrates that entitlement to a TDIU is not warranted on either a schedular or extraschedular basis as the Veteran is not precluded from obtaining or maintaining a substantially gainful occupation solely due to service-connected disabilities. Thus, entitlement to a TDIU on a schedular or extraschedular basis is denied. 2. Entitlement to TDIU after July 10, 2014 is granted. As of July 10, 2014, the Veteran’s combined evaluation was 80 percent and there was at least one disability that was rated at 40 percent. As such, the Veteran met the criteria for schedular TDIU. Notably, the Veteran’s plantar fasciitis evaluation was increased to 50 percent, which reflects marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Veteran underwent a VA examination in March 2015 to evaluate her ankle condition. The examiner determined that the Veteran’s ankle condition would not affect her ability to work. In another March 2015 VA examination to evaluate the feet, the examiner noted that the Veteran’s plantar fasciitis would affect her ability to work as she experienced a loss of tolerance for ambulation as well as functional loss including excess fatigability, pain on movement, weightbearing, and not weightbearing, disturbance of locomotion, interference with standing, and lack of endurance. February 2014 VA records indicated that the Veteran was capable of taking walks despite heel and hip pain. October 2014 VA treatment records noted that the Veteran complained of severe back pain with symptoms worsening upon prolonged standing or sitting. VA medical treatment records from March 2015 to August 2018, however, indicated that the Veteran was ambulatory. September 2018 VA records noted that the Veteran walked independently, but reported lower back pain at 8/10. Several treatment records did note that the Veteran utilized a cane when walking. A VA examination was conducted in March 2019 to evaluate the Veteran’s feet. The examiner determined that the Veteran’s condition precluded the Veteran from gainful employment if the Veteran was required to stand. A March 2019 VA examination for the knees indicated that the Veteran’s knee condition did not preclude gainful employment if a sedentary job was considered. The examiner emphasized that the Veteran’s condition limited ambulation. In a March 2019 VA examination for the spine, the examiner found that the Veteran’s condition affected her every day, lasting for several hours. It was noted that the Veteran was limited to 10 to 15 degrees of flexion. The examiner stated that the condition precluded the patient from working due to poor standing, ambulation, driving, and dressing which would limit her ability to perform any job duties, even clerical ones. The examiner noted that pain was easily exacerbated upon minimal physical activities such as dressing or sitting for more than 10 minutes. An addendum VA opinion was provided in March 2020. The examiner explained that the Veteran’s back condition precluded her from pursuing gainful employment. The examiner stated that 2019 evaluations showed very limited range of motion with pain at all ranges. This limited the Veteran drastically in completing most activities and would therefore preclude her from any job, even a sedentary one. The examiner then stated that while the Veteran’s feet and knee conditions alone would not preclude sedentary employment, it did contribute to the Veteran’s decision to quit her job at the sewing textile. After consideration of the record, and resolving all reasonable doubt in favor of the Veteran, the Board finds the service-connected disabilities have been sufficiently disabling as to render the Veteran unable to maintain substantially gainful employment consistent with her education and occupational background after July 10, 2014. The March 2015 VA examiner noted that the Veteran would be limited in her work capabilities as she would be limited in ambulation, weight bearing, standing, etc. VA medical records also indicated that the Veteran was already experiencing severe back pain in 2014 and that she was no longer capable of prolonged sitting or standing. In the March 2019 VA examination, the examiner determined that the Veteran’s foot and knee condition would preclude her from any employment that would require standing or ambulation. The examiner also determined that the Veteran’s spine condition precluded her from gainful employment, including sedentary positions. He stated that her flexion was severely limited and that even household duties would be difficulty for the Veteran to complete. Importantly, the evaluation assigned for the plantar fasciitis was increased to 50 percent, which recognizes the increase in pain, even on non-ambulation, in the Veteran’s feet. As the examiner concluded that the Veteran would be precluded from physically demanding jobs and sedentary employment, the Board finds that entitlement to TDIU is warranted after July 10, 2014. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected disabilities render her unable to secure and follow a substantially gainful occupation. Therefore, entitlement to a TDIU is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ashley Ki 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.