Citation Nr: 21026648 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-19 167 DATE: May 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis beginning March 1, 2009, but no earlier, is granted. FINDING OF FACT Beginning March 1, 2009, but no earlier, the Veteran's service-connected disabilities have prevented him from being able to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria are met for entitlement to a TDIU on an extra-schedular basis beginning on March 1, 2009, but no earlier. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 1971 to November 1973. In November 2014, the Veteran and his wife testified at a Travel Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Board twice remanded this claim for further development and consideration initially in October 2018 but also more recently in January 2021 so it could be referred to the Director of the Compensation Service for consideration of entitlement to this benefit on an extra-schedular basis from December 9, 2008 to January 17, 2012 under the special provisions of 38 C.F.R. § 4.16(b). Only this earlier period is still at issue because the Veteran had a temporary 100 percent convalescent rating under 38 C.F.R. § 4.30 as of January 17, 2012 while he recuperated from his left ankle fusion surgery owing to his left ankle osteoarthritis until being granted a TDIU effective August 1, 2012. Entitlement to a TDIU on an extra-schedular basis beginning March 1, 2009, but no earlier, is granted. The Veteran argues that, when considering he last worked in 2005, he is entitled to a TDIU from much earlier meaning even before receiving the temporary 100 percent convalescent rating and eventual TDIU. For this preceding rating period still at issue from December 9, 2008 to January 17, 2012, the Veteran's service-connected disabilities do not meet the threshold minimum rating requirements for a TDIU on a schedular basis meaning under 38 C.F.R. § 4.16(a). Since, however, the evidence suggests he was unemployable even during this earlier period owing to his service-connected disabilities, especially because of his left ankle disability, the Board did the required remand and referral of this claim in January 2021 to the Director of the Compensation Service for consideration of entitlement to this benefit, instead, on an extra-schedular basis under the special provisions of § 4.16(b). The Board cannot grant a TDIU on an extra-schedular basis in the first instance, but this does not preclude the Board from determining whether this special referral to the Director of the Compensation Service is warranted for this initial determination. See Barringer v. Peake, 22 Vet. App. 242 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); and VAOPGCPREC 6-96 (August 16, 1996). Extra-schedular TDIU consideration requires contemplation of the following factors: severity of the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). But, by the same token, consider also that the Director's decision is not evidence, but, rather, the de facto decision of the Agency of Original Jurisdiction (AOJ), and the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extra-schedular consideration). The Court since has reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extra-schedular rating and elaborated that the Board is authorized to assign an extra-schedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Although the Board is required to obtain the Director's decision before awarding extra-schedular benefits, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages, 27 Vet. App. at 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); and 38 C.F.R. § 4.16(b) in the TDIU context). Here, after the remand and referral, the Director determined in a February 2021 Memorandum Decision that an extra-schedular TDIU during his earlier period at issue is not warranted, so this claim has been returned to the Board for further appellate consideration. And, for the following reasons and bases, the Board now contrarily finds that the Veteran's service-connected disabilities, especially his left ankle disability, rendered him unemployable even well before his January 2012 ankle surgery. In a precedent case, the Court held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The Court also provided guidance as to the meaning of a Veteran's ability to "secure and follow" such employment, noting that attention must be given to: the Veteran's occupational history, education, skill and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities. See Ray v. Wilkie, 31 Vet. App. 58 (2019). To establish entitlement to a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In making this determination, the central 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). Records show the Veteran worked as a car mechanic for his career and, most recently, from 2000 to 2005 at one specific automobile repair shop. He has testified and argued in his pleadings that his service-connected ankle disabilities (especially his left ankle disability) started worsening substantially during that time, eventually leading to his need for the left ankle fusion surgery in 2012. He also reported that, since the termination of his employment in 2005, he has not been able to work as a mechanic owing to the severity of his ankle disabilities, but especially because of his left ankle disability. His left ankle disability has resulted in falls and very limited mobility. While the record reflects that he reported initially leaving his job to help family members, the Board acknowledges his written testimony, received by VA in June 2010, that his ankle condition, especially his chronic pain, began to worsen appreciably in March 2009. This report is corroborated by VA examinations done around that time. The Veteran initially reported being told by his physician in December 2008 that his only treatment option to eliminate the pain would be to fuse his left ankle joint. However, he also reported that at that time his pain was "intermittent based on [his] activity and seemed to be manageable." In the same written correspondence, the Veteran reports than his chronic ankle pain began to worsen in March 2009 to the point where he felt he needed pain management in the form of prescription pain medication. This is corroborated by a written statement from his wife, received by VA in June 2009, as well as contemporary treatment records. The Board also notes the report of a VA examination performed the following year, in August 2010, regarding the left ankle, shows the Veteran reporting left ankle weakness, stiffness, swelling, giving way, lack of endurance, tenderness and pain, difficulty with standing/walking, and that both ankles sprained easily. The physical examination also revealed he had an abnormal gait due to bilateral ankle weakness and pain and that he could not perform a tandem gait test because of his bilateral ankle weakness and pain. The left ankle specifically showed instability, weakness, tenderness and guarding of movement with 15 degrees dorsiflexion and 30 degrees plantar flexion. The VA examiner observed the Veteran could not walk over 1/4 of a block at a time, could not do prolonged standing for over 2 minutes, could not run, could not go up and down stairs without pain, and was a moderate fall risk. Similarly, the report of a January 2011 VA examination shows the Veteran reporting right ankle weakness, stiffness and pain, and left ankle weakness and pain, both of which were causing difficulty with standing/walking and an inability to do prolonged kneeling or squatting. The physical examination confirmed he had right ankle instability, weakness and tenderness, and left ankle instability, weakness, tenderness, deformity and malalignment. In summary, then, VA treatment records and private treatment reports during the time frame at issue beginning on March 1, 2009 collectively show the Veteran's service- connected disabilities, especially his left ankle disability, had gotten so bad that he could no longer work in any substantially gainful capacity when also considering the physically demanding nature of his prior work as a mechanic. Indeed, his left ankle symptoms and impairment continued to progress to the point he needed a left ankle arthrodesis that he eventually had surgery for in January 2012. While the Board acknowledges the Director's opinion that the Veteran was still able to perform sedentary work, when considering the extent of his ankle disabilities in combination with his lumbar spine disability and in light of his level of eduction, prior training and work experience, the Board finds that the criteria for a TDIU on an extra-schedular basis have been met since March 1, 2009, the date on which he has indicated his left ankle condition, particularly, worsened to the point of causing unemployability. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.