Citation Nr: 21025534 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 09-18 838 DATE: April 28, 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 had a combined rating of 60 percent for multiple disabilities prior to his death; and he was not unable to secure or maintain substantially gainful employment consistent with his history due solely to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1951 to December 1952. Unfortunately, the Veteran died in May 2017. The Appellant is his surviving spouse, and she has been properly substituted as the claimant in this case. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision. In August 2012, the Veteran testified at hearing before another Veterans Law Judge (VLJ), who has since left the Board. In February 2018, the Appellant declined to appear at another hearing. The Board previously remanded this issue, most recently in March 2018, for development. The Appellant submitted a statement in November 2019 in response to the last supplemental statement of the case (SSOC), concerning the Veteran’s difficulties due to service-connected disabilities and his employment. As similar information was already of record prior the SSOC, the Board may consider this information without a waiver of review by the agency or original jurisdiction (AOJ). Although the Appellant submitted a general power of attorney for Patrina Copeland in 2017, she has not appointed an accredited attorney or agent for her appeal. 1. Entitlement to a TDIU A TDIU will be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, a schedular percentage threshold must be met to be eligible for TDIU. If there are two or more service-connected disabilities, as in this case, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities for a combined overall rating of 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19. However, all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, if the schedular threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). In determining unemployability, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). There is an economic component, which includes whether any employment was marginal; and a non-economic component, which includes mental and physical capacity based on occupational history, education, skills, and training. Ray v. Wilkie, 31 Vet. App. 58 (2019). Consideration should be given to prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. Pederson v. McDonald, 27 Vet. App. 276 (2015). All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In this case, the Veteran did not meet the schedular percentage threshold for a TDIU. He was service-connected for bilateral pes planus, rated 50 percent disabling effective since April 2008, and 10 or 30 percent prior to that time since 1965. Associated right and left ankle conditions of calcaneal (heel) spurs were rated 0 percent each, effective since May 2011. The Veteran was also service-connected for left hand or finger disabilities of left first metacarpal fracture residuals and left index finger injury residuals with limitation of motion, each rated 10 percent disabling since 1965. The Veteran’s combined rating was 60 percent, effective since April 2008, and 20 or 40 percent prior to that time. Therefore, although he had one disability rated 40 percent or more since May 2008, his additional disabilities did not combine to 70 percent for the schedular threshold. Additionally, the evidence does not show unemployability for TDIU purposes. As explained below, the Veteran had the mental and physical capacity to obtain and maintain substantially gainful employment consistent with his history when considering his service-connected disabilities, despite not working for years. The Appellant is not competent to provide an opinion as to whether the Veteran was unemployable based on his service-connected disabilities. Moreover, she described significant impairment due to nonservice-connected disabilities in addition to his service-connected disabilities, which is consistent with his records. The Veteran was awarded nonservice-connected pension, considered permanent and total, effective since December 2008. Nonservice-connected conditions that were considered for this purpose were coronary artery disease, atypical chest pain or esophageal spasm, lumbosacral spine arthritis or degenerative disc disease, left and right lower extremity peripheral neuropathy, peripheral artery disease with leg pain, varicose veins in both lower legs, left and right knee arthritis, left and right hip conditions, left ankle fracture residuals, and depression. Claims for service connection for many of these conditions, as well as special monthly pension based on the need for regular aid and attendance, were denied. See rating decisions in January 2010, October 2010, and April 2013; July 2013 Board decision. The ultimate question of whether a Veteran is capable of substantially gainful employment is a factual one to be determined by the VA adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Although medical examiners may give a medical opinion on the ability to perform certain tasks, they are not experts on employment in general. Moore v. Nicholson, 21 Vet. App. 211, 219-20 (2007). Medical examiners are responsible for providing a full description of the effects of disability, while the VA adjudicator is responsible for interpreting reports in light of the whole recorded history and reconciling the various reports into a consistent picture to accurately assess the disability. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). VA is not required to provide a vocational assessment for a TDIU claim, and it is within VA’s discretion to determine whether a vocational assessment is required under the facts. Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011). In the prior remands, the Board directed that a medical opinion be obtained to determine if the Veteran’s service-connected disabilities at least as likely as not rendered him unable to obtain and maintain employment prior to May 2017, without consideration of his nonservice-connected disabilities or age. This directive was completed through adequate VA opinions obtained in October 2019. In several October 2019 reports, a VA examiner reviewed the evidence and opined that it is less likely than not that the Veteran’s service-connected left hand disabilities, bilateral pes planus of the feet, and calcaneal spurs of the ankles rendered him unable to obtain and maintain employment prior to May 2017. The examiner noted that the left hand or finger disabilities impacted his ability to grasp objects with the left hand and limited any repetitive motion or use of the left hand. His feet and ankle disabilities impacted his ability to walk or stand for prolonged periods. For each of these disabilities, the examiner opined that the Veteran would have been capable of performing the required tasks for sedentary employment. The opinion reports noted that sedentary work was defined as: Exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. Occasional was defined as less than 1/3 of the workday; frequent meant between 1/3 and 2/3 of the workday; and constant meant greater than 2/3 of the workday. Although these opinion reports were phrased partially in terms of whether the Veteran was able to obtain employment, which is a determination for the Board, the examiner also described the effects of the service-connected disabilities and general requirements of a sedentary job, which are probative factual matters. The Veteran did not complete the requested formal TDIU application (VA Form 21-8940) prior to his death. The Appellant submitted a VA Form 21-8940 on his behalf in July 2018. Although the form did not contain all relevant information, including the Veteran’s employment and educational or training history, the form is not strictly necessary because the relevant information is otherwise of record. It is unclear when the Veteran stopped working or retired, although it appears to have been many years prior to his death in May 2017. In December 2012, the Social Security Administration (SSA) responded that medical records had been destroyed. In September 2008, SSA basic information indicated that a date of initial entitlement in March 1991, but a disability onset date in January 1982. Based on the Veteran’s date of birth in 1931, the 1991 date appears to be based on retirement. Despite the notation of a disability onset in 1982, as summarized, the Veteran reported working through at least 1988 and being self-employed at times. In a July 2018 formal TDIU claim (VA Form 21-9840), the Appellant reported that the Veteran had a high school degree, but no other training or employment history. She indicated that she was unsure what disabilities caused the Veteran to be unemployable, but for several years prior to his death, he had a heart condition, post cardiac bypass surgery, and severe swelling of the feet and legs related to circulation problems and deep vein thromboses (DVTs). She also described severe shortness of breath due to poor blood flow and the Veteran’s heart condition. In November 2019, the Appellant submitted a copy of an obituary or funeral program and noted that the Veteran was trained as a Master Barber, which she indicated was how he earned his living throughout his life. The funeral program stated that the Veteran learned to cut hair at his father’s barbershop in his youth, and after graduating from a training school in 1946 he became a Master Barber, along with his military service that was from 1951 to 1952. The Appellant stated that the Veteran’s occupation as a barber required him to stand on his feet and use his hands continuously, many times working for 10 to 12 hours a day. She asserted that his service-connected feet and hand disabilities prevented him from standing for lengthy periods of time, and grasping with his hands became increasingly difficult. Only the left hand is service-connected, and he is right-hand dominant. These reports are similar to the Veteran’s prior reports as to his feet and left hand. A prior copy of the Veteran’s online obituary noted his graduation from the training school and military service, and VA treatment records in October 2003 and May 2009 noted that he worked as a barber for many years and was a retired barber. During his August 2012 Board hearing, the Veteran reported being self-employed at times, which may be a reference to his working as a barber. He stated that he did not receive much unemployment or retirement Social Security benefit due to his self-employment. The Veteran also testified to working as a truck driver at times and doing other jobs that did not involve walking or his feet as much due to pain. In a May 2013 correspondence, the Veteran reported having several odd jobs that did not require a lot of walking or standing. He stated that he had a cardiac bypass in 2002, and his VA rheumatologist determined that he needed a scooter in 2009. During a November 2013 VA examination, the Veteran summarized his work history, stating that in the 1960’s he was granted service connection for his feet and left hand, and each time he got a job he had problems of aching or pain with his feet. The Veteran stated that he was unable to sustain a job that required him to be on his feet for more than 3 hours, and that he lost several jobs due to his inability to keep up “the pace,” such as being a planter and other labor jobs. The Veteran reported being a truck driver for about 1.5 years until he had difficulty using the clutch and shifting gears, although he had another truck driver job for about 6 months. His last job was in 1988 as a bus driver for 3 to 5 years. This appears to refer to the Veteran’s last job other than self-employment, to include as a barber. In addition to the reports by the Appellant and the Veteran noted above, an April 2008 VA treatment record noted bilateral foot pain and short-distance claudication, as well as a current prescription for gout and a history of flat feet. The impression was severe peripheral vascular disease (PVD) with claudication, although the current foot pain was not likely secondary to PVD. The Veteran was referred to primary care for treatment of arthritis and a consult for PVD with claudication. A May 2008 VA examination stated that occupational effects due to the bilateral feet and ankle disabilities were chronic pain and swelling of the feet. A May 2009 VA treatment record noted chronic bilateral foot and knee pain since approximately 1989, described as burning and aching that was increased with standing and walking. The assessment was chronic bilateral foot pain that appeared to be due to a combination of plantar fasciitis, peripheral neuropathy, and PVD. In October 2009, the Veteran’s daughter and long-time neighbors submitted statements. His daughter stated that in the past few years the Veteran’s mobility had declined, it was hard for him to walk even a short distance, and he could not stand without a cane. His legs and feet hurt constantly, and he was given a scooter. Similarly, the Veteran’s neighbors stated that in the past they would see the Veteran outside a lot when he could get around fairly well, but for the last 6 to 7 years he had been having problems getting around and being able to perform as in the past. They referenced him having a bypass surgery, which was in 2002 for coronary artery disease, and stated that for the last 5 years the Veteran had not been able to walk much because his feet swelled a lot and he complained of them hurting. These lay statements are both generally consistent with increased problems beginning after the Veteran’s bypass surgery for coronary artery disease. A December 2009 VA treatment record noted coronary artery disease since 1985, status post CABG in 2002, PVD, and gout. The provider stated that the vascular clinic noted that foot pain was not due to PVD, and the Veteran was seen by the rheumatology clinic and given allopurinol and colchicine, which is for gout. In a May 2010 letter, private provider Dr. M stated that the Veteran had heart disease with a bypass surgery in 2002 and severe peripheral arterial disease with no palpable pedal pulses in the feet and complaints of pain at rest. In March 2010, an arteriogram showed severe vascular disease, which required angioplasty. Dr. M stated that the Veteran would need to be on Plavix for his lifetime. Records of treatment from this provider from 2010 to 2011 reflect similar problems, with a history of status post CABG (bypass) in 2002 and myocardial infarction in 1999. A September 2010 VA examination for the feet noted pain on standing or walking and difficulty getting around the house. The Veteran reported constant aching, burning, sharp, and/or cramping pain in both feet and legs at a level 9 out of 10, which was exacerbated by physical activity. He stated that at the time of pain he has “other problems that do not allow him to function.” Pes planus prevented him from being on his feet for long periods, he had swelling and fatigue while standing or walking, and functional impairment was being unable to walk or stand for long periods and feet aching constantly. The examiner found evidence of abnormal weightbearing with callosities on his feet, and stated that he required a cane for ambulation due to “other leg problems that were not evaluated on this examination.” No brace, wheelchair, or other assistive device was needed. In statements received in March 2011 (signed in December 2010) and May 2012, one of the Veteran’s providers, Dr. K, summarized that the Veteran had chronic foot pain from flat feet (pes planus) that was complicated by toe deformities, severe peripheral neuropathy, and severe vascular disease (or PVD). Dr. K stated that the combination of these problems greatly restricted the Veteran’s ambulatory status. Dr. K opined that the Veteran’s worsening foot deformities had resulted in pain in his ankles and other areas. (As noted above, service connection was denied for conditions other than bilateral ankle spurs associated with his bilateral pes planus). Dr. K also stated that he Veteran’s chronic left hand pain with decreased grip strength and dexterity affected his ability to use a cane for walking. Dr. K summarized that the Veteran had been having similar problems since 2010, and he needed a cane, walker, or electric wheelchair for ambulation (or walking). A January 2013 VA examination for artery and vein conditions noted a diagnosis of PVD in 2010. The Veteran reported progressive development of claudication-type symptoms in the lower extremities over the past several years, and non-VA providers found severe PVD that required operative intervention for revascularization. The Veteran reported episodes of pain at rest in the lower extremities since then, and that this claudication-related pain was distinctly separate from his foot pain related to pes planus. The Veteran reported having many years of pain in the feet with prolonged standing and walking, which was attributed to his pes planus. The examiner noted that the Veteran’s history of bilateral foot pain was further complicated by his history of a combination of gouty and degenerative arthritis of the feet, as noted in a March 2009 VA treatment record. The Veteran reported using a cane and a motorized scooter on a regular basis, which the examiner explained was due to a combination of symptoms of arthritis of the lower extremity weightbearing joints and PVD of the lower extremities. The examiner stated that the Veteran’s vascular condition of PVD would impact his ability to work by allowing only minimal amounts of walking or standing, with an ability to rest at will, and no operating foot controls. A March 2013 VA treatment record noted coronary artery disease, PVD, degenerative joint disease, gout, and that the Veteran’s pain was primarily in the knees. He had run out of medications of allopurinol and colchicine (for gout), as well as Tylenol, gabapentin, and tramadol for pain; medications were refilled. A November 2013 VA examination for pes planus noted pain on use and manipulation of the feet that was accentuated with use, as well as extreme tenderness of the plantar surfaces that was not relieved by arch supports, orthopedic shoes, or other appliances. The Veteran reported using a wheelchair constantly and a cane occasionally due for ambulation due to foot pain. The examiner stated that the bilateral flat foot impacted his ability to work, noting that the Veteran reported using a wheelchair or cane for ambulation at all times or 80 percent of his awake time, and that it took time to walk from his bed to areas in his house. The examiner also noted that X-rays from 2008 for flat feet with complaints of worse pain in both feet showed bilateral pes planus and a left plantar calcaneal spur, and his foot pain was also consistent with gout and advanced age. Despite the November 2013 examiner’s notation of impacts due to pes planus of needing a cane and wheelchair, there is ample lay and medical evidence showing that these devices were not primarily due to flat feet or ankle spurs. Instead, as summarized above, this degree of impairment was primarily due to nonservice-connected conditions including PVD, arthritis, and gout in the lower extremities. Concerning the Veteran’s left hand, an October 2009 VA examination noted left thumb pain, aching, and cramping, but that the Veteran reported being able to function during episodes of pain without medication. His described the overall functional impairment as being loss of grip strength in the left hand, and the examiner stated that the effect on his usual occupation was mild. A January 2013 VA examination for the hands and fingers noted pain and weakness of the left thumb and index finger, which is his non-dominant hand, related to his service-connected left metacarpal fracture residuals and degenerative arthritis of the first carpometacarpal joint. This disability would impact his ability to work by allowing for no repetitive grasping or manipulation of objects using the left hand. Overall, the weight of the lay and medical evidence shows that the Veteran’s primary physical impairments were due to his nonservice-connected conditions. He had difficulty standing and walking for prolonged periods due to his bilateral pes planus and associated ankle spurs, and reduced grip strength due to the disability of his left hand or fingers on his non-dominant hand. However, he retained significant physical capacity and worked as a barber, as well as a bus driver and truck driver for several years, despite these impairments. Although the Veteran had increased feet problems due to pes planus over time, the evidence does not show that the increase sufficiently decreased his functional capacity for him to be unable to work as a barber or in other positions consistent with his history prior to his death. Working as a bus driver or truck driver would be consistent with the description of his functional impacts, as well as the sedentary definition in the October 2019 reports. The Veteran’s age and nonservice-connected impairments are irrelevant to the analysis of entitlement to TDIU. In summary, the Veteran does not meet the TDIU schedular percentage threshold, and the preponderance of the evidence is against finding that his service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment consistent with his educational and occupational history prior to his death. Although his service-connected symptoms varied in frequency and severity and resulted in occupational difficulties, they did not result in unemployability. Instead, his high combined rating accounts for his impairment. There is no reasonable doubt to resolve in the Appellant’s favor, and the appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.