Citation Nr: 21022287 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-17 446 DATE: April 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The Veteran does not meet the schedular criteria for entitlement to a TDIU, and the evidence of record does not support a finding that the Veteran’s service-connected right ankle disability renders him unable to obtain and maintain substantially gainful employment so as to warrant referral for extraschedular consideration. CONCLUSION OF LAW The criteria for entitlement to a TDIU and referral for extraschedular consideration of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from June 1982 to May 1986. This matter comes before the Board of Veterans’ Appeals (Board) by way of a July 2012 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified at a January 2017 hearing before the undersigned Veterans Law Judge, a transcript of which is attached to the record. The Board previously remanded this issue for further development in January 2018 and September 2019, and in November 2020 the AOJ issued a decision denying entitlement to a TDIU. Entitlement to a TDIU In a September 2019 decision, the Board denied the Veteran’s claim for entitlement to a rating in excess of 20 percent for a right ankle disability and remanded the issue of entitlement to a TDIU to the AOJ for further development. In November 2019 and January 2020, the AOJ contacted the Veteran and requested a Veterans’ Application for Increased Compensation Based on Unemployability (VA Form 21-8940) as well as a Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192). The Veteran provided a VA Form 21-8940, stating only that he had worked full time for Halliburton from January 2012 to December 2017 until he quit due to excessive pain and difficulty walking caused by his service-connected right ankle disability. The AOJ informed the Veteran in September 2020 that they had attempted to obtain information from Halliburton in June, August, and September 2020, with no response. The Veteran asserts he is unable to find and maintain gainful employment due to service-connected disability. At the outset, the Board observes that the AOJ complied with the September 2019 Board remand instructions by attempting to develop the Veteran’s claim. Stegall v. West, 11 Vet. App. 268 (1998). The Board further observes that the Veteran has the ultimate burden to provide private records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Finally, the Board notes that the Veteran’s sole service-connected disability is his degenerative joint disease of the right ankle with recurrent ankle sprains, rated as 20 percent disabling since February 2007. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure of follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § § 3.340, 3.341, 4.16(a). In order to be granted a TDIU, the Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). As the Veteran does not meet the schedular requirements, his claim for entitlement to a TDIU on a schedular basis must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Although TDIU is denied on a schedular basis, it may still be assigned on an extraschedular basis under 38 C.F.R. § 4.16(b). If the Veteran is found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). However, in this case, the Board finds that the Veteran is not unemployable solely as a result of his service-connected ankle disability, and therefore referral for extraschedular consideration is not warranted. A review of the record reveals the Veteran has earned a high school degree and completed one year of college level courses. Social Security Administration (SSA) records indicate the Veteran worked full time as a truck driver hauling wood products from 2002 to 2011 before driving trucks to set up and operate oil fracking wells from 2012 to 2017. They also show that the Veteran applied for disabled status based on bilateral ankle and left wrist disorders, as well as asthma and diabetes mellitus. In November 2019 the Veteran was determined to be “not disabled,” and the SSA decision officer stated “your condition results in some limitations in your ability to perform work-related activities, [but] we have determined that your condition is not severe enough to keep you from working.” As noted above, the Veteran’s sole disability is his right ankle degenerative arthritis. He was afforded VA examinations for this disability in January 2012 and September 2020. In January 2012, the Veteran described high levels of pain and instability in his right ankle, which he stated caused him to fall six times in the prior year when transferring from his truck cab, although he noted his ankle brace was helping. He also reported being able to walk only half a mile before experiencing a flareup causing increased ankle pain. In September 2020 the Veteran reported pain in his ankle, worse with weather changes and in the morning as well as limited range of motion after extended periods of standing. The examiner observed reduced range of motion of the right ankle as well as pain on extended use which limited tasks like walking up stairs. No other factors, including ankylosis or instability, were noted and full muscle strength was recorded. The examiner concluded the Veteran was limited in tasks requiring standing and walking. The Board does not wish to minimize the nature of the Veteran’s service-connected ankle disability, but the evidence does not support his claim that it is severe enough to produce unemployability considering his recorded symptoms and past employment history. While he reported instability resulting in falls in January 2012, he was able to continue working as both a driver and fracking rig worker full time with overtime pay for six years after the examination. During his latest VA examination, he reported no falls and testing revealed no indication of ankle instability. According to SSA records, the Veteran passed a Department of Transportation medical certification as recently as January 2018, and there is no medical evidence of worsening ankle symptoms since that date. SSA records indicate the Veteran also reported difficulties due to non-service connected disorders such as diabetes mellitus and asthma, describing his last year of work with “I didn’t have any energy in 2017, try to do work but kept getting tired,” and indicating he was often short of breath and required at least three naps per day. Although the Veteran’s exhibits a degree of impairment, he is not precluded from finding and maintaining gainful employment solely because of his service-connected right ankle disability. The Veterans primary functional impairment, described by the September 2020 VA examiner as “with long standing the pain limits use,” does not preclude him from finding work commensurate with his past experience as a truck driver. To the extent that the Veteran is limited by his service-connected disability, any such limitation is found to be contemplated in, and is being adequately compensated by, the current disability rating assigned for his service-connected disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that a disability rating in and of itself is recognition that the impairment makes it difficult to obtain or keep employment). Finally, the Board observes that the Veteran’s right ankle disability has not been found to present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Notably, the September 2019 Board decision denying entitlement to an extraschedular rating for the Veteran’s right ankle disability found that the periods of hospitalization and missed work he had attributed to his right ankle disability were in fact due to non-service-connected disorders, and the Board is bound by this finding. See Johnson v. Brown, 7 Vet. App. 25, 26 (1994) (the “law of the case” doctrine operates to preclude reconsideration of identical issues). Accordingly, for the reasons set forth above, entitlement to a TDIU has not been established on either a schedular or extraschedular basis, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 4.16(b). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.