Citation Nr: 21027378 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 09-40 326 DATE: May 5, 2021 ORDER Entitlement to a finding of total disability based on individual unemployability (TDIU) on an extra-schedular basis is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDING OF FACT The Veteran's service-connected bilateral foot disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU on an extra-schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from April 1968 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Board denied entitlement to a rating in excess of 20 percent for bilateral pes cavus with hammer toe deficiencies and denied entitlement to a TDIU. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (Court). In January 2018, the Court granted a joint motion for partial remand (JMPR), vacating the Board's May 2017 decision concerning a rating in excess of 20 percent for bilateral pes cavus with hammer toe deformities and entitlement to a TDIU. In January 2021, the Board granted entitlement to a separate 20 percent rating for left foot pes cavus with hammertoe deformities, a separate rating of 20 percent for right foot pes cavus with hammertoe deformities, and entitlement to special monthly compensation under 38 U.S.C. § 1114(l) due to loss of use of both feet. The Board remanded the issue of entitlement to a TDIU on an extra-schedular basis for an advisory opinion from the Director of Compensation Service. The matter has now been returned to the Board for review. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total rating can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). If not, all veterans who shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). If 4.16(a) is not met, the case will be referred to the Director of the Compensation Service, for extra-schedular consideration of all veterans who are unemployable by reason of service-connected disabilities. Id. Here, the Veteran is service connected for right foot pes cavus with hammertoe deformities rated at 20 percent disabling; left foot pes cavus with hammertoe deformities rated at 20 percent disabling; left foot surgery with scars rated as 20 percent disabling from September 14, 2015, and residual scars, left foot surgery, rated as noncompensably disabling. Because the Veteran is not in receipt of the minimum schedular ratings required for the award of a TDIU under 38 C.F.R. § 4.16(a), the Board is to consider whether 38 C.F.R. § 4.16(b) is for application. Fanning v. Brown, 4 Vet. App. 225, 229 (1993). As discussed further below, the claim has already been referred to the Director of Compensation Service for extra-schedular consideration. Though VA is required to obtain the Director's decision before awarding extra-schedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. § 511(a), 7104(a); 38 C.F.R. § 4.16(b)). The central inquiry is whether the Veteran's service-connected disabilities render him unemployable. In this regard, the question is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In a TDIU application, signed in May 2008, the Veteran stated that the most he earned in one year was $19,598.00 in 1990 as a truck driver. He reported that he last worked full time in June 1998 and became disabled in June 1998. He stated that he previously worked as a salesclerk and as a land surveyor from June 1992 to December 1996. He reported that he completed 3 years of college. Turning to the medical evidence, an April 2005 VA examination report noted that the Veteran was only able to stand for 15 to 30 minutes and was able to walk more than 1/4 mile but less than 1 mile. He reported falls because his toes did not touch the ground. The Veteran stated that his foot pain interfered with work and led to retirement from employment. The examiner noted that there were significant effects on employment. The Veteran was provided a VA examination in February 2008. The Veteran reported symptoms in his left foot of pain (while standing, walking, and at rest), swelling (while standing, walking, and at rest), stiffness (while standing, walking, and at rest), weakness (while standing and walking), and lack of endurance (while standing and walking). In his right foot, he had symptoms of pain (while standing, walking, and at rest), swelling (while standing, walking, and at rest), and stiffness (while standing, walking, and at rest). He stated that he could not walk as much and was unable to stand for more than a few minutes. Social Security Administration (SSA) records show that the Veteran reported that he was in constant pain and could not hold a job. He also reported his prior work history, noting that he had worked in food service, factory worker, land surveyor, and drove trucks. During an April 2000 evaluation, he indicated that he last worked in June 1998 at Chevron Food Mart for two years. He stated that he felt that he could not work because of his poor health and that his feet hurt all the time. In April 2010, the Veteran was provided another VA examination for his feet. The examiner opined that the Veteran's pes cavus would have a severe impact on his ability to perform physical employment due to pain and limited mobility. The examiner felt that there would be no impact on the Veteran's ability to perform sedentary employment. At the September 2011 examination, the Veteran reported pain, stiffness, fatigability, weakness, and lack of endurance in both the left foot and right foot. He required corrective shoes and a wheelchair. The Veteran's bilateral pes cavus and hammertoe deformity limited his mobility due to pain and decreased motion of the forefoot. The Veteran had limited mobility and used a power chair due to a painful and unsteady gait. The September 2015 VA examination shows that the Veteran endorsed pain on non-weight-bearing, loss of balance, required constant use of a cane and motorized scooter, and suffered functional impairments such as an inability to walk or stand in excess of five minutes. The VA examiner stated that the Veteran could only stand for five minutes at a time and could only walk approximately 50 yards before his pain and numbness became extreme. The examiner opined that the Veteran's disability would have a severe impact on physical occupation and moderate impact on sedentary occupation due to inability to ambulate without a cane and suggested potential work accommodations such as working at a work bench, and using a scooter for tasks involving mobility from one station to another, or watching security cameras. In November 2014, a private vocational consultant reviewed the claims folder. It was noted that the Veteran had been unable to work since 1998 primarily due to his bilateral foot pain. The vocational consultant cited evidence of record, including VA medical examinations and SSA records. The consultant recognized that the Veteran had other medical conditions that were not service connected but noted that the assessment was focused solely and exclusively on the Veteran's service-connected disabilities. The vocational consultant opined that it was at least as likely as not that the Veteran's service-connected bilateral foot pain, independent of other physical limitations, prevented him from securing or following a substantially gainful occupation. It was noted that the Veteran's pain negatively affected his concentration, persistence, pace, and attendance. The consultant explained that, even when sedentary, the Veteran had severe and constant foot pain and when he attempted to stand and walk to perform tasks such as getting in and out of his wheelchair, showering, and getting in and out of his car. Any amount of such standing and walking made his pain worse, but his pain was constant throughout his sitting and lying down activities. Due to pain-related poor sleep, the Veteran also required a nap every day from noon to 2:00 pm. Because of his constant foot pain, he had to keep his feet elevated for up to four to five hours per day. He used a large reclining chair for the elevation. The Veteran understood that there was no reliable and sustained sedentary work that he could perform with this particular limitation. In August 2018, a private physician, Dr. N.N. submitted a report. He indicated that he reviewed the entire claims file and photographs of the Veteran's feet provided for his review. Dr. N.N. noted that in 1999, the Veteran had surgical scars on the left foot and was only able to stand for a maximum of two hours without pain. He stated that over time, the Veteran continued to be treated with orthotic devices for both feet in order to maintain some level of ambulatory function and eventually, the orthotics were no longer of sufficient benefit in allowing him to stand of walk for any substantial period of time. By 2006, the Veteran was having difficulty with pain while performing the most minimal of ambulatory activities. The Veteran noted on multiple occasions that he was unable to stand for more than five to ten minutes without significant pain. In 2009, he was already using a motorized scooter due to his foot pain. Dr. N.N. found that the Veteran's service-connected bilateral pes cavus with hammertoe deformities prevented him from going to and from the workplace and performing sedentary work without the use of a motorized scooter for tasks involving mobility. He was unable to stand greater than 5 minutes even with assistive devices due to pain, significant callosities and gross swelling around his foot and ankle, which limited his range of motion. Therefore, Dr. N.N. opined that it was at least as likely as not that the Veteran's service-connected bilateral pes cavus with hammertoe deformities prevented him from securing and following substantially gainful employment. In August 2019, the Veteran was provided another VA examination for his feet. The Veteran reported that he could not stand for more than five minutes and could not walk for more than two to four minutes at a time. When walking, he needed to use a cane and a motorized scooter to get around. The examiner indicated that due to the Veteran's foot condition, there was functional impairment of an extremity such that no effective functions remain other than that which would be equally well served by an amputation with prothesis as the Veteran had significant right foot deformity of pes cavus, metatarsalgia, painful callosity, hammertoes, hallux rigidus, hindfoot valgus causing chronic pain and significant limitation of mobility and significant left foot deformity with pes cavus, metatarsalgia, hallux rigidus, and post-surgical toes limitation of motion causing chronic pain and limitation of mobility. The examiner stated that the Veteran had effectively near total loss of use of both feet. In a separate opinion, another clinician indicated that the Veteran's current bilateral foot conditions rendered him limited to sedentary activities and it was less likely than not that the Veteran could secure gainful employment given multiple comorbidities, mainly the foot conditions. In February 2021, the Director of Pension service provided an advisory opinion regarding entitlement to TDIU on an extra-schedular basis. The Director briefly noted the Veteran's last full-time work and medical evidence showing limitation to standing to 5 minutes and walking for 2 to 4 minutes but then concluded that the preponderance of the evidence did not show that the Veteran was unable to obtain or maintain gainful employment due to his service-connected conditions. Considering the above, the Board finds that the probative evidence of record shows that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment. Unlike the criteria for an extra-schedular rating under 38 C.F.R. § 3.321, the grant of an extra-schedular rating for a TDIU under 38 C.F.R. § 4.16(b) is based on a subjective standard that seeks to determine if a particular Veteran is precluded from employment based on his service-connected disabilities. Specifically, the Board finds the medical evidence demonstrating the severe functional limitations of the Veteran's bilateral foot disabilities coupled with the August 2019 clinician's opinion, the vocational consultant's opinion, and Dr. N.N.'s opinion that the Veteran was unable to work as a result of his service-connected bilateral foot disabilities as highly probative. The vocational consultant's opinion is very persuasive as the opinion was based solely on the Veteran's service-connected disabilities, review and citation of the medical evidence, description of the Veteran's limitations and how those translate to work-related tasks, to include his constant pain impacting concentration, persistence, and attendance, pain-related sleep requiring a two hour nap every day, and elevation of his feet of about four to five hours per day. In addition, Dr. N.N.'s opinion is also highly probative as he provided an exhaustive recitation of the record and supported his conclusions with citation to the record. The Board finds that the functional limitations associated with his bilateral foot disabilities would pose significant barriers to ability to achieve and sustain gainful employment. See Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) (holding that the phrase "unable to secure and follow a substantially gainful occupation" in § 4.16 has economic and noneconomic components, the latter of which focuses on the individual veteran's ability to perform the physical and mental acts necessary for such an occupation). Moreover, the Board also has considered the Veteran's work history consisting of physical jobs that required him to be on his feet, such as his work as a sales clerk and land surveyor, or use his feet when he worked as a truck driver. His work history and educational history demonstrate a lack of transferable skills to a job such as office work. Resolving reasonable doubt in the Veteran's favor, entitlement to TDIU on an extra-schedular basis is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will not specify the effective date of the TDIU to allow the RO to do so in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating.") Patrick M. Johnson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.