Citation Nr: 21021148 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 18-22 896A DATE: April 9, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran’s service-connected disabilities have not rendered him unable to secure and follow 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. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from November 2012 to April 2013. The Veteran’s claim for TDIU has been before the Board twice before. The first time, in January 2019, it was remanded and deferred awaiting the completion of his pending service-connection claims. The second time, in September 2020, it was remanded for referral to the Director, Compensation Service, for consideration of the assignment of an extraschedular evaluation. In December 2020, a negative response was received. A December 2020 supplemental statement of the case was most recently issued, and the claim is once again before the Board. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities. The Veteran contends that he is unable to work due to his service-connected disabilities. Specifically, he alleges that the pain from his ankle disabilities and his surgeries preclude employment. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the disability rating assigned for his or her service-connected disabilities met certain thresholds. 38 C.F.R. § 4.16(a). The Veteran’s service-connected disabilities are a painful, unstable surgical scar of the right ankle, rated at 20 percent disabling; residuals status post ORIF right ankle fracture, rated at 10 percent disabling prior to August 31, 2017 and 20 percent disabling from June 1, 2018; and a scar associated with residuals status post ORIF right ankle fracture, rated at 0 percent disabling, for a combined evaluation of 10 percent prior to August 31, 2017, and at 40 percent as of June 1, 2018. The Veteran does not meet the schedular requirement under 38 C.F.R. § 4.16 (a). It is noted the Veteran was rated at 100 percent from August 31, 2017 to June 1, 2018, based on surgical or other treatment necessitating convalescence. Where the veteran fails to meet the applicable percentage, standards enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In that situation, the case may be referred to the Director of Compensation Services (Director) for consideration of the assignment of a TDIU rating. 38 C.F.R. § 4.16 (b). In its September 2020 remand, the Board referred the claim to the Director for an opinion. In December 2020, the Director denied a TDIU on an extraschedular basis. The Board may now review the issue de novo and award extraschedular TDIU if warranted. Wages v. McDonald, 27 Vet. App. 233 (2015). The Board turns to the second aspect of TDIU: whether the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER’S COLLEGEIATE DICTIONARY 1123 (2003). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The record shows that the Veteran has a high school diploma with no further training. Prior to joining the military, he worked as a laborer for the county commission. Following service, the Veteran has not provided any information about his work history. A VA Form 21-8940 was sent to the Veteran in October 2017, and he never returned it to the VA. However, in October 2016, the Veteran sought medical treatment for a nonservice-connected injury and told the doctor he was making a claim for workers’ compensation. In July 2017, the Veteran underwent a VA examination where he told the examiner he was not currently working. Finally, in a January 2020 mental health assessment note, the Veteran indicated he had had many ankle surgeries, causing him to take unpaid medical leave. Turning to the Veteran’s actual occupational impairment due to his service-connected disabilities, the Veteran contends he is unable to work due to his ankle disabilities. The Veteran submitted notes from two doctors concerning his ability to work. In May 2018, a doctor stated that due to current multiple medical conditions, the Veteran was unable to work at this time, and he has been off work since September 2017. The specific disabilities affecting his employment were not specified. The second note, dated August 2018, indicated the Veteran was unable to work due to his right ankle pain and condition. The physician provided no rationale for his determination. Due to the ambiguity of the May 2018 note and the lack of rationale for the August 2018 note, the Board accords little probative value to these statements. The Veteran underwent a VA examination in July 2017 for his residuals from ORIF of right ankle fracture. The Veteran said due to weakness and tightness in the ankle, he was unable to run, and it was difficult to do things that require steady support such as lifting heavy objects, carrying things, or walking or standing for prolonged periods. The examiner determined the Veteran had limitation in range of motion with pain on plantar flexion resulting in decreased ability to perform activities such as running and pressing an object with his foot, such as a gas pedal, and that his limitation in range of motion with dorsiflexion resulted in a decreased ability to provide a base of support when performing activities such as lifting heavy objects. In November 2017, the Veteran underwent another VA examination. He told the examiner he had ankle instability with frequent falls, and he was unstable to walk or stand for any increased periods of time. The Veteran constantly wears an ankle brace for his right ankle instability and pain. The examiner found the Veteran to be very limited with his ability to squat or raise onto toes, and that he suffered from pain that impairs his ability to walk for periods of time. In a December 2020 advisory opinion on extraschedular consideration, it was noted that the Veteran’s employment history following separation from service was not provided. It was noted that records reflect the Veteran has limited range of motion for the right ankle with painful motion and that this pain and limited motion impair his ability to stand or walk for long periods of time. It was noted that the cumulative evidence does not support that any service-connected condition, alone or in conjunction, would have precluded all forms of substantially gainful activity, including in a sedentary or semi-sedentary environment. The question of unemployability is ultimately a legal one, not a medical one. In this regard, the Board acknowledges the impact the Veteran’s service-connected ankle disabilities has on his employability, which may limit the type of jobs he may be able to secure; however, the Board finds that such does not render him unable to secure and follow substantially gainful employment. The Veteran contends that his surgeries prevent him from working and he is unable to stand or walk for extended periods of time. The Veteran has not provided evidence to support his claim, nor completed a VA Form 21-8940. The Veteran is reminded that the duty to assist is a two-way street. The Veteran cannot passively wait for help in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). After weighing the evidence of record, the Board finds that the record does not support that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. The Veteran’s occupational impairment from his disabilities manifests in difficulty walking or standing for extended periods, difficulty carrying, squatting, or rising on his toes. There are no showings of loss of use of his ankle, extensive hospitalizations outside of surgery for his condition, or any exceptional disability complaints. While the Veteran received convalescence compensation for his ankle surgeries, he has not since provided any evidence that would show following his surgeries, he would be unable to perform a sedentary job. (Continued on the next page)   Therefore, the Board finds that the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. As such, an extraschedular TDIU is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, as such, that doctrine is not applicable in the instant appeal, and his claim for extraschedular TDIU must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A.M. CLARK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Doerfler, 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.