Citation Nr: 21023738 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-31 804 DATE: April 21, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Throughout the period on appeal, the Veteran does not have one service-connected disability rated at 60 percent or more, or at least one service-connected disability rated at 40 percent or more with a combined disability rating of 70 percent; and, the Veteran is not shown to be unemployable due to his service-connected left foot talipes varus. CONCLUSION OF LAW The criteria for the assignment of a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1950 to May 1951. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from the December 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision confirmed and continued the 30 percent disability rating for the service-connected left foot talipes varus. The Veteran’s Notice of Disagreement (NOD) was received in October 2016. The Statement of the Case was issued in May 2017, and the Veteran’s VA Form 9, substantive appeal to the Board was received in June 2017. The claim for increased rating for the service-connected left foot talipes varus was remanded by the Board in July 2018 and July 2020. Subsequently, a February 2021 Board decision denied entitlement to a rating in excess of 30 percent for the service-connected left foot talipes varus. The same decision noted presence of evidence that the Veteran’s left foot talipes varus impacted his ability to work and thus determined that a claim for a TDIU has been raised as part of a claim for increased rating for left foot talipes varus. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The February 2021 Board decision remanded the claim for entitlement to a TDIU for further development and adjudication. Entitlement to a TDIU. As noted above, an inferred claim for a TDIU has been raised as part and parcel of the September 1, 2015 claim for increased rating for the service-connected left foot talipes varus. From July 1, 2013, the Veteran was in receipt of a 30 percent rating for left foot talipes varus, and a combined disability rating of 30 percent. From September 1, 2015 onward, the Veteran was in receipt of a 30 percent disability rating for left foot talipes varus, and a combined disability rating of 40 percent. A total disability rating may be assigned, where the schedular rating is less than total, when it is determined that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). The question of whether a veteran is capable of substantially gainful employment is not a medical determination, it is an adjudicatory one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Total disability ratings for compensation may be assigned pursuant to 38 C.F.R. § 4.16(a) where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more with a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system and/or disabilities resulting from common etiology or a single accident are considered as one disability. Id. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. In this case, the Veteran’s disability rating for his service-connected disability does not meet the schedular threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) at any point during the period on appeal. More specifically, the Veteran does not have one disability ratable at 60 percent or more, or, at least one disability ratable at 40 percent or more with a combined disability rating of 70 percent. Accordingly, entitlement to a TDIU on a schedular basis is denied. That notwithstanding, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards, should be referred to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). In this regard, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Recently, the Court addressed the appropriate standard for the Board to apply in determining whether to remand the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) for referral to the Director. Ray v. Wilkie, 31 Vet. App. 58 (2019). The dispositive issue in this regard is whether there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his service-connected disabilities. Id. In this case, there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities during any time on the period of appeal, and referral to the Director, Compensation Service is not warranted. During the period of appeal, the Veteran’s service-connected disabilities included left foot talipes varus, rated as 30 percent disability from July 1, 2013; right foot hammertoes, rated as 10 percent disabling from September 1, 2015; and left foot hammertoes, rated as noncompensable from September 1, 2015. A February 2015 VA examination report indicates that the Veteran reported left foot pain with walking since his March 2013 surgery, worsening with weight bearing. The Veteran reported using a walker and propping his left lower leg to alleviate the pain. An October 2015 VA examination report indicates that the Veteran had left foot talipes varus with degenerative joint disease (DJD). The Veteran reported constant left foot/ankle pain, which he treated with mediation and cortisone injections. The Veteran also reported seeing a podiatrist every 6 weeks and having a foot/ankle brace that did not fit. The Veteran reported always using a walker. Under functional impairment, the VA examiner listed left foot and ankle pain with weight bearing which causes the Veteran to use a walker for ambulation. A November 2016 VA treatment note indicates that the Veteran was seen for left foot pain, with tingling and burning. He reported not using his brace as it rubbed on his foot. Mild edema was noted on his left ankle. His muscle strength was normal and an x-ray report indicated cavovarus deformity with increased sclerosis and flattening of talus. In his June 2017 VA form 9, the Veteran indicates that he is required to use a walker to get around and wears special shoes. He also reported having a podiatrist cut his toenails and having little functionality in the left foot. A March 2019 VA examination report contains a diagnosis of bilateral hammertoes with degenerative arthritis and congenital left foot talipes varus (club foot deformity). The Veteran reported constant left foot and ankle pain aggravated by standing and walking. Under functional impairment, it was noted that the Veteran was unable to walk without a rolling walker due to left foot and ankle pain. His foot disabilities were noted to be moderately severe on the left and not affected on the right. The VA examiner concluded that the Veteran’s foot condition did not result in a functional impairment of an extremity such that no effective function remains other than which would be equally well served by an amputation with prosthesis. The VA examiner also concluded that the Veteran’s foot disabilities did not impact his ability to perform any type of occupational work (such as standing, walking, lifting, sitting, etc.). A September 2020 VA examination report indicates that the Veteran’s left foot talipes varus with degenerative arthritis is moderately severe. The VA examiner indicated that it chronically compromises weight bearing. The Veteran reported his disability limiting endurance and mobility. He complained of constant left foot pain. He was noted to regularly use a walker and prop his left leg to alleviate the weight. The VA examiner concluded that the Veteran’s disabilities impacted his ability to perform any occupational task (such as standing, walking, lifting, sitting, etc.) by limiting endurance and mobility. An October 2020 VA addendum opinion indicates that the Veteran’s 2019 and 2020 VA examination results did not indicate septic arthritis/osteomyelitis of the left ankle, which was present during his 2014 examination. Thus, the competent and credible medical evidence is against the finding that the Veteran is unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. His lay testimony as to the functional impairment of his service-connected disabilities has been considered in reaching this decision. This impairment includes constant left foot/ankle pain which prevents the Veteran from ambulating without a walker. Essentially, his disabilities limit his mobility and endurance. This does not prevent all forms of gainful occupation, as the Veteran is able to perform sedentary work. There is no indication that the Veteran’s disabilities have been improperly rated. Moreover, there is no evidence suggesting that the Veteran’s disabilities caused him to lose any employment. While the Veteran may have problems with mobility or endurance, there is no evidence illustrating that he stopped working due to his service-connected disabilities. Of note, the record does not contain information regarding the Veteran’s education or employment history. However, the RO provided the Veteran with a VA Form 21-8940, which he has not submitted. While VA has a statutory duty to assist in developing evidence pertinent to the claim, a veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (191). Therefore, VA has satisfied its duty to assist in the development of the TDIU claim. Based on the above, the great weight of the evidence does not support the finding that the Veteran’s service-connected disabilities (combined at 40 percent disabling from September 1, 2015) render him unemployable. While there is evidence that the Veteran’s service-connected disabilities have a functional impact on his ability to perform work duties, the preponderance of the evidence does not show that these disabilities render the Veteran unemployable. Consequently, the Board does not find a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities, and a remand for referral of an extraschedular TDIU claim pursuant to 38 C.F.R. § 4.16(b) to the Director is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.