Citation Nr: 21015217 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-19 176 DATE: March 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), including on an extraschedular basis, is denied. FINDING OF FACT The Veteran does not meet the schedular criteria for a TDIU, and the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities render him unable to engage in substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1983 to December 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA). This case was most recently remanded by the Board in August 2020 for referral to VA’s Director, Compensation Service (Director) for consideration of entitlement to a TDIU on an extraschedular basis. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). A TDIU can also be awarded on an extraschedular basis under 38 C.F.R. § 4.16(b), if it is determined that the veteran is unemployable by reason of service-connected disability but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Entitlement to a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), and an extraschedular rating under 38 C.F.R. § 3.321(b)(1), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran’s disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. In order for a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is because a disability rating itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. Significantly, however, the Board does not have jurisdiction to authorize an extraschedular rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the rating board must submit to the Director, Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Id. In the August 2020 Remand, the Board determined referral to the Direction for extraschedular consideration was warranted and the Veteran’s case was referred. In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim, or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53. The Veteran is currently in receipt of a 20 percent rating, from February 20, 2018, for degenerative joint disease (DJD) with history of hallux valgus deformity and bunions, previously rated as 10 percent disabling from October 1, 1996, and 20 percent from January 1, 1994 to October 1, 1996; a 10 percent ratings for scar on the right great toe, from August 16, 2007; and median nerve neuropathy status post fracture of the left index finger, from January 31, 2011 (previously rated as noncompensable from January 1, 1994). The Veteran’s combined disability rating has been 30 percent from January 31, 2011, to February 19, 2018, and 40 percent since February 20, 2018. Accordingly, his combined disability ratings have not met the schedular threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) at any point during the appeal period. On remand, the RO referred the case to the Director in September 2020 for extraschedular consideration and recommended that entitlement to a TDIU be denied. See September 2020 VA Memo. In a November 2020 decision, the Director concluded that the medical evidence of record shows the Veteran’s conditions cause functional limitations, but not to the extent and severity that would prevent him from obtaining or maintaining substantial gainful employment. The Director noted the Veteran has some pain with prolonged walking or standing. His other service-connected conditions would not preclude either sedentary or physical employment. See November 2020 Advisory Opinion. While the Director concluded that TDIU was not warranted, such opinion is not binding on the Board, and the Board may assign an extraschedular rating when appropriate in consideration of all the evidence of record. See 38 U.S.C. § 7104(a); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Kuppamala v. McDonald, 27 Vet. App. 447, 456 (2015). However, the Board agrees that the evidence does not demonstrate that assignment of a TDIU is warranted. After having considered all of the evidence of record, the Board finds that the evidence weighs against finding that the Veteran’s service-connected disabilities alone render him unable to secure and follow substantially gainful employment. In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. 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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran’s: work history, education, skill, and training; the Veteran’s physical ability to perform work activities; and the Veteran’s mental ability to perform work activities required by the Veteran’s occupation. Regarding the noneconomic component defined in Ray v. Wilkie, supra, the Board notes that the Veteran has a high school education. He had worked as a janitorial supervisor, ship building laborer, and grass cutter. He reported being unemployed from full-time work since 2005. On his Application to a TDIU received in April 2020, the Veteran reported impairments related to his back as the cause of him being unemployable. He is not currently service-connected for a low back disorder and therefore, the Board may not consider the impairment caused by his back in determining whether a TDIU is warranted. Similarly, on his Social Security Questionnaire, when asked to explain his impairments and the affect each had on his ability to work, he stated: Lifting (only 10 lbs.); squatting and bending (back pains); standing (back pain and leg cramps); reaching (neck pain and back pains); walking (rest after every 100 yds); and sitting (back pain, leg cramps). He did not report functional impairment from any of his service-connected disabilities. Various VA examinations have addressed the impairment caused by the Veteran’s service-connected disabilities and the impact they would have on employment. For example, a May 2011 VA examination report noted that the Veteran could stand for 15 minutes and walk for 100 yards due to pain and weakness from her right toe disability. The effect of the Veteran’s disability on his usual occupation is that he has difficulty doing any work that required standing and walking. His daily activities are not affected by his conditions. Regarding the Veteran’s left finger disability, the examination noted that during flare-ups the Veteran finds it hard to grasp or hold objects. A January 2017 VA examination report notes that the Veteran’s left finger disability did not impact his ability to perform any type of occupational task. A February 2018 examiner found that the Veteran’s right hallux valgus did not impact his ability to work. The Veteran’s use of a cane for ambulation and balance does interfere with his ability to carry, lift, or climb while holding his cane. Walking long distances increases the right great toe pain. As such, the Veteran has a limited ability to stand for long periods or walk long distances. If the Veteran takes his prescribed medication, it makes him drowsy, reducing productivity. The Veteran’s past job as a sheet metal worker required walking, climbing, and stooping, and his ability to perform his job was limited by his toe pain. The Veteran is receiving Social Security Administration (SSA) disability due to his back condition and right foot osteoarthritis. Medical evidence from SSA shows that the Veteran’s right foot condition does cause some pain with prolonged walking and standing. The Veteran’s SSA records show that his disability benefits result primarily from his back disability, which is not service connected. While the Board is cognizant that the Veteran’s foot disabilities impact his ability to stand and walk, the preponderance of the evidence of record demonstrates that he is not precluded from performing the physical and mental acts required by employment due to his service-connected disabilities. The probative evidence of record shows that the Veteran is capable of performing the physical and mental acts required by work that would not require him to stand or walk for long periods of time. In the April 2020 statement, the Veteran reported previously having been a light wheel vehicle mechanic. This job would require the Veteran to perform maintenance, repair, and recovery operations on wheeled vehicles. In this position, the Veteran would not be required to stand on his feet or walk for long periods. Similarly, the Veteran has experience in supervising. Much of the job requirements of a supervisor, which includes training and supervising staff members, would allow the Veteran to be seated for a large part of the day. Put differently, these positions are semi-sedentary in nature. Merriam-Webster online dictionary defines “sedentary” as (a) “doing or requiring much sitting” or (b) “not physically active.” https://www.merriam-webster.com/dictionary/sedentary. The Board employs this definition in the current analysis for TDIU consideration. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). While the Board does not wish to minimize the nature and extent of the Veteran’s overall service-connected disabilities, the evidence of record does not support his claim for a TDIU. The Board reiterates that the issue is not whether the Veteran is unemployed, or has difficulty finding employment, but rather, whether the Veteran is capable of performing the acts required by employment. See Van Hoose, 4 Vet. App. at 363. Although the Board is cognizant that the Veteran may be precluded from some types of employment, the preponderance of the evidence demonstrates that he is not precluded from performing the acts required by employment that is semi-sedentary. His work history indicates that he has experience in this type of work. In sum, given the Veteran’s education, skill, and work experience and the impact he experiences from his service-connected disabilities, the Board cannot say that the combination of the Veteran’s service-connected disabilities, prevents him from performing the physical and mental acts required by employment. The totality of the competent evidence of record weighs against finding the Veteran unable to perform the physical and mental acts required by employment. Accordingly, a TDIU on an extraschedular basis is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not for application in the instant appeal. See 38 U.S.C. § 510(b). MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.