Citation Nr: 21024662 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-19 820 DATE: April 23, 2021 ORDER A claim for total disability rating based on individual unemployability (TDIU) to include on an extraschedular basis is denied. FINDING OF FACT The Veteran does not meet the schedular requirements for a TDIU, nor does the weight of the evidence suggest that he is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from March 1977 to May 1999. In September 2019, the Veteran and his wife, D.M, testified before the undersigned Veterans Law Judge at a hearing held via live videoconference. A transcript of that hearing is of record. This matter was previously remanded by the Board for additional development in June 2020. The requested development has been completed and this matter is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for a left foot condition and right foot pain/tendonitis was also remanded by the Board in June 2020. Following the remand, the December 2020 rating decision granted service connection for bilateral plantar fasciitis and right calcaneal spur. This constituted a full grant of the benefits sought on appeal, and as such these claims are no longer in appellate status and will not be discussed below. AB v. Brown, 6 Vet. App. 35, 39 (1993). TDIU The Veteran testified that he was last employed in 2010 as his disabilities prevented him from securing or following any substantially gainful occupation. He stated that due to his hip disability, back problems, and breathing issues, he could not work anymore. Total disability ratings for compensation may be assigned, 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, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability 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. Id. The Veteran’s schedular ratings fail to meet the threshold requirements for a TDIU. The Veteran is service-connected for hypertension at a 10 percent disability rating; bilateral plantar fasciitis and right calcaneal spur at a 10 percent disability rating; tinnitus at a 10 percent disability rating; status post right ankle fracture at a noncompensable disability rating; status post right carpal tunnel release at a noncompensable disability rating. Thus, the Veteran’s combined service-connected disability rating is 30 percent. As such, the Veteran does not meet the schedular rating criteria for a TDIU. See 38 C.F.R. §§ 4.16 (a), 4.25. The Board notes that in rare instances a case may be referred to the Director of Compensation for extraschedular TDIU consideration when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability(ies). See 38 C.F.R. § 4.16 (b). The primary 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). The evidence of record is insufficient to show that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The record reflects that the Veteran was last employed on December 2, 2012, at the Winn Dixie Store, Inc. The record reflects that the Veteran was afforded VA examinations pertaining to his service-connected disabilities. At a June 2018 VA examination pertaining to the Veteran’s bilateral foot disability, the VA examiner reported that the Veteran’s disabilities impacted his ability to work and would be best suited for sedentary duty, although the examiner did not suggest that the foot problems would preclude employment that was not sedentary in nature. At an October 2012 and June 2018 VA examinations pertaining to the Veteran’s hypertension, the VA examiners found that the Veteran’s hypertension did not impact his ability to work. Additionally, in an August 1999 VA examination for the joints, the VA examiner determined that while the Veteran complains of hypersensitivity of the right elbow in the vicinity of his “funny bone” for occasional numbness in the little and ring fingers of the right hand, it did not interfere with his work. The Board takes “sedentary employment” to have the common meaning in society of non-physical, white collar, office-type work. Here, it is not disputed that the Veteran’s now service connected foot problems might cause some problems with employment, but the fact remains that the reason the Veteran stopped working was on account of non-service connected disabilities such as his back and his hips. For example, VA treatment records from an acupuncture consult, dated December 2019, note that the Veteran stated he worked as a restaurant manage and butcher before stopping due to back pain. The Veteran further stated that he aspired to return to work as a volunteer but again his back pain prevented him from standing and walking. Therefore, he stayed indoors most of the time due to limited mobility. At his hearing, the Veteran acknowledged that he had been in culinary services for more than two decades in the service, and that this could lend itself to employment in such fields as hotel management. The Veteran also indicated that he had stopped working because of his hips and back. There was no suggestion at the hearing that the Veteran’s feet had caused him to be unable to work. It is not argued that the feet would cause some impairment with employment, as was acknowledged by the VA examiner. However, some impairment is the reason that a compensable rating was assigned. The Board recognizes that the Veteran does have impairments that may prevent his employment; however, these are factors not related to his service-connected disabilities. Overall, a thorough review of the Veteran’s VA and private treatment records does not support the contention that his service-connected disabilities prevent his ability to secure or maintain substantially gainful employment. Furthermore, while the June 2018 VA examiner determined that the Veteran’s bilateral foot disability impacted his ability to work, it did not prevent sedentary employment, and the Veteran had a long military career in which he was able to adapt to different positions, and he acknowledged at his hearing that his military training was adaptable to hotel management, a line of work which would likely have some sedentary positions. Therefore, the weight of the evidence is against establishing the Veteran was unable to secure substantially gainful employment solely due to his service-connected disability. Thus, a referral for an extraschedular TDIU is not warranted for the entire period on appeal. Accordingly, the claim for a TDIU is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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.