Citation Nr: 21029074 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-66 619 DATE: May 12, 2021 ORDER An evaluation of total disability based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDING OF FACT The preponderance of evidence weighs against a finding that the Veteran is unable to secure and follow substantially gainful employment because of his service-connected disabilities. CONCLUSION OF LAW The requirements for a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5017; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1992 to August 1994. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board remanded this matter to be submitted to the Director, Compensation Service, for extraschedular consideration per 38 C.F.R.§4.16(b). Entitlement to an evaluation of TDIU on an extraschedular basis is denied. The Veteran seeks entitlement to a TDIU. The Veteran presently has a 30 percent combined evaluation for compensation based on a service-connected bilateral flexible pes planus valgus disability, which was rated as non-compensable from February 2, 2000, but is now evaluated at 30 percent disabling, effective February 7, 2013. The Veteran also has a non-compensable evaluation for a service-connected left foot calcaneal spur. He argues that his service-connected disabilities render him unable to secure and follow substantially gainful employment. The April 2019 Board decision denied a rating excess of 30 percent for bilateral foot disability, characterized as pes planus, and a compensable rating for left calcaneal spur. These matters were not appealed and thus the Board's decision on those ratings became final. According to the 2019 Board remand instruction, the TDIU matter was referred to the Director, Compensation Service, for 38 C.F.R. § 4.16(b) consideration. Subsequently, an extraschedular TDIU was denied by the Director, Compensation Service, in May 2020. See May 2020 VA Memo. However, the Board will review the Veteran's claim on a de novo basis. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (finding that the VA Compensation Service Director's initial determination as to an extraschedular evaluation is not evidence). Generally, to be eligible for a TDIU claim, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent with a combined overall rating of 70 percent or more. See 38 C.F.R. § 3.340, 3.341, 4.16(a). In this case as previously described by the Board in 2019, the Veteran does not meet the schedular thresholds for a TDIU, as his combined evaluation for compensation is 30 percent. Nevertheless, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a Veteran fails to meet the rating enumerated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The central inquiry in determining whether a veteran is entitled to a TDIU rating is whether that veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. The question of whether TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007, rev'd on other grounds, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to the "effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not on a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (finding that VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination, but may choose to do so in an appropriate case). In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 . The Veteran's application for TDIU indicates he last worked in December 2010 (from September 2008) as a driver, earning up to $4,000 per month while working 56 hours per week. The Veteran wrote that he suffered a "serious spinal injury" in his neck for which he receives workers' compensation, and that he is thus unable to do that sort of work any longer. He also indicated that his service-connected foot disability, due to severe pain, prevented him from securing or following gainful employment. See February 2014 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. At the outset, the Board observes that the Veteran is not service-connected for a neck or spine disability. As the Court noted in Hatlestad, the question of TDIU must be determined based on the Veteran's service-connected disabilities alone. See Hatlested, 5 Vet. App at 529. As such, the impact from cervical spine disability is not relevant to the TDIU inquiry before the Board. Nonetheless, the Board is still required to decide without regard to the nonservice-connected disabilities (or other factors) whether the Veteran's service-connected disabilities are sufficiently incapacitating as to render him unemployable. See Id. (quoting Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992)). The United States Court of Appeals for Veterans Claims has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skills and training, (b), the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g. sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Board will address each of these factors in turn. History, Education, Skills and Training Regarding education, special training, and previous work experience, the Veteran has a high school diploma and has attended some college. See October 2014 Academic Transcripts and Grade Reports; and see February 2014 VA Form 28-1900 Disabled Veterans Application for Vocational Rehabilitation. He holds a certificate in blueprint reading. See February 2014 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. After receiving vocational rehabilitation assistance from VA, the Veteran was awarded a Master Level Professional Gunsmith Certification in April 2016. See August 2014 Education General. The Veteran's resume also shows that he has a Class-B driver's license, basic computer knowledge including Word, and experience in shipping and receiving, with warehouse management skills. In a later filing, however, the Veteran stated he has "no computer skills." See November 2016 Affidavit. The resume additionally shows work history as a delivery driver for multiple companies between 1996 and 2010, and that work includes concurrent experience as a major appliance installer, and a warehouse manager. See April 2014 Resume. Physical Abilities The Veteran has contended that his foot problems have precluded his ability to stand or walk for long periods. In March 2001, the Veteran noted as much when seeking vocational rehabilitation benefits through VA. See March 2001 VA Form 28-1900 (Education General). However, the Veteran continued working for the following nine years. During his application process for vocational rehabilitation gunsmithing training, the Veteran was assigned a VA Vocational Rehabilitation Counselor. The Counselor prepared a report in April 2014 which stated the Veteran had nonservice-connected disabilities including spinal stenosis and lumbar disk injury from previous employment, as well as very painful gout, but the Veteran was receiving treatment and medication for both those conditions. Nonetheless, chronic pain in the Veteran's back, knees, and feet did not allow him to perform lifting, carrying, or other physical activities that require repetitive movements. The Veteran had a history of a past arrest, which was subsequently resolved. The counselor wrote that the Veteran had not overcome numerous other barriers to employment including chronic pain, substantial periods of unemployment, lack of higher education, dependence on government aid, lack of transportation, and a suspended driver's license at that time. The counselor checked a block to indicate that the Veteran's service-connected disabilities "contributed in substantial part" to vocational impairment. See VA Form 28-1902b, Counseling Record Narrative Report. In July 2014, as part of the Veteran's vocational rehabilitation application, a physician completed an employment capacities form. The doctor indicated that the Veteran's primary care physician was unable to fully evaluate his functional capacity, and therefore, the questionnaire was completed with answers obtained from the Veteran himself. The Veteran's responses indicated he could only stand or walk for 0-2 hours at a time, up to 2-4 total hours per day. He could sit for 6-8 hours. He could drive a vehicle for 1-3 hours at a time (however, another checked block indicated he could drive only 30-60 minutes at a time). He indicated he could frequently lift up to 30 pounds, and occasionally lift 50 pounds. He indicated he could use both his hands and feet for repetitive movements, and he could balance. The Veteran asserted limitations with bending, squatting, kneeling and crawling, noting he could only perform those actions occasionally. However, he would be able to frequently climb, reach, twist, or rotate per the physician. No further restrictions were stated, and the Veteran was cleared for full-time work by the physician. See July 2014 Form VR-39, Rehabilitation Employment [with receipt date of 4/10/2014]. In April 2016, the Veteran submitted a signed affidavit stating that he was unable to obtain or maintain substantially gainful employment due to his service-connected foot conditions. He indicated having to leave employment in 2010 as a driver due to severe foot pain and being unable to wear required uniform steel-toed boots. He described daily foot pain. See April 2016 Affidavit. In November 2016, the Veteran submitted another signed affidavit. The Veteran stated he experienced near-constant foot pain and he could not take medication due to other medical conditions. The Veteran described being limited to walking or standing for no more than 10 minutes at a time, and having to rest after any significant exertion. He stated he could not find employment as a gunsmith because all listings for such jobs required standing for hours at a time. See November 2016 Affidavit. Other evidence of record, however, shows that the Veteran was unable to find any openings for gunsmith positions, except for one which he annotated was too far to commute. See May 2016 Third Party Correspondence. In March 2018, the Veteran provided a letter from a private vocational consultant, who holds a PhD in rehabilitation counseling and special education. The consultant indicated review of the Veteran's claim file, and provided an opinion that it was more likely than not that the Veteran has been unable to secure and follow substantially gainful employment, even at the sedentary level, because of his service-connected disabilities since he last worked full-time in 2010. See March 2018 Correspondence. After review of the 2018 vocational consulting report in light of the relevant lay and medical evidence of record, the Board finds the consultant's opinion holds low probative weight. Specifically, the consultant did not in any way distinguish the Veteran's limitations due to service-connected disabilities, from problems due to nonservice-connected medical conditions. Rather, the consultant conflated the two. For example, in summarizing the Veteran's history of "foot pain," the consultant annotated treatments for gout in August 2007, June 2009, and August 2010, and treatment for tendonitis in July 2010. She described each of these instances only as "foot pain," and omitted the extremely pertinent fact that each of these cited instances was clearly shown in the medical record to be diagnosed as a nonservice-connected problems, such as gout and tendonitis. See August 2007, June 2009, July 2010 and August 2010 VA Medical Treatment Record (10/07/2014 CAPRI, at 340, 345, 404, 410, 429, 434. The consultant did not cite to a single instance of treatment for bilateral flexible pes planus valgus, or for left foot calcaneal spur. The Board does not know the reason for these factual omissions, but in any case, it does not appear that the consultant was informed of the relevant facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (stating that value of medical opinion evidence, among other factors, is based on whether a clinician was "informed of the relevant facts" and medical history in rendering a medical opinion). As a discussion of these relevant facts were not discussed by the vocational consultant's opinion, has diminished weight. Moreover, the consultant is not shown to have any medical expertise or training per her resume. March 2018 Correspondence, at 13. Thus, as a layperson, she is not competent to diagnose, or to opine that these past instances of gout and tendonitis were related to the Veteran's service-connected pes planus and calcaneal spurs. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the consultant found the Veteran is unable to work due to his numerous other medical problems, the discussion of the non-medical evidence of record holds some residual probative value. However, the consultant's overall conclusion is of low weight. Mental Abilities The record does not show that the Veteran is mentally impaired in any way. Regarding a career path as a gunsmith, the record shows that the Veteran had difficulty with some of his vocational rehabilitation courses, and at one point requested an extension for his training, but he ultimately completed the program successfully. The Veteran's job searches also show that he has sought work as a CNC operator, programmer, and machinist. See May and July 2016 Third Party Correspondence. The record does not show that the Veteran is mentally limited from such a career, and the Veteran's multiple job searches in that field and his past work as a warehouse manager strongly indicate he has the needed mental ability. Other Medical Evidence The Veteran's VA medical treatment records generally show a recurrent history of gout attacks which cause severe pain in his bilateral feet and knees, and preclude his ability to walk. From 2008 to 2011, during which time the Veteran ended his employment as a driver, the Veteran was treated for acute gout foot pain more than 20 times. Treatment records show those attacks typically precluded his ability to stand or walk. On numerous occasions, the Veteran personally described to his doctor that he was having gout attacks. During the same period, the record does not show any treatment or complaint for his service-connected conditions. See generally VA Medical Treatment Records. In January 2014, the Veteran underwent a VA examination for his pes planus and calcaneal spur conditions. The examiner documented the Veteran's reports of frequent foot pain and swelling, and wrote that the Veteran's condition impacted his ability to work because prolonged standing and walking increased bilateral foot pain. The Veteran's calcaneal spurs were indicated as stable and small, bilaterally. The Veteran reported occasional pain, but he denied flare-ups. He denied any additional limitations of motion after repeated use. See January 2014 Compensation and Pension (C&P) Examination. In October 2017, the Veteran underwent another VA examination for his foot conditions. The examiner documented bilateral foot pain with functional loss due to pain on weight-bearing, which caused disturbance of locomotion and interference with standing. Pes planus caused pain upon use. There was no indication of swelling due to pes planus. The Veteran did not have characteristic callouses from pes planus and did not demonstrate extreme tenderness on plantar surfaces. However, his feet showed pronation, as well as decreased longitudinal arch height upon weight bearing. Mild plantar calcaneal spurs caused pain at the balls of his feet bilaterally. Regarding functional impact of these conditions, the examiner wrote that the Veteran used to work as a truck driver but he stopped working in 2010 due to worsening foot pain bilaterally after prolonged driving and walking. See October 2017 C&P Examination. Analysis After a review of the relevant competent evidence, the Board finds that the preponderance of evidence does not support a finding that the Veteran is unable to secure and follow substantially gainful employment because of his service-connected disabilities. The Veteran's pes planus and calcaneal spurs are shown to cause foot pain, and they are shown to require him to wear orthotic inserts in his shoes. The record shows the Veteran has functional limitations due to foot pain and he is being compensated for this impairment in earning capacity. See 38 C.F.R. § 4.1 (2020) ("The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations."). However, the Veteran's medical record shows that an overwhelming majority of his treatment for foot pain has not been the result of his service-connected disabilities, but rather because of recurrent nonservice-connected gout and gouty arthritis attacks. The Veteran left his job as a driver amidst several years of recurrent gout attacks. His generalized complaints of foot pain and inability to work because of foot pain are not shown to have been the result of his service-connected disabilities, but rather the result of his recurrent gout. Although the Veteran may sincerely believe that his severe, recurrent problems with standing and lifting are due solely to his service-connected disabilities, the record does not show that the Veteran has the required medical training or expertise, as detailed above, to render such an opinion. See Jandreau, 492 F.3d at 1377. As discussed previously, the Board does not find the private consultant's opinion on this matter to be probative, as it is based on inaccurate and misleading representation of the Veteran's medical history. The Veteran himself has indicated he has severe spinal problems which preclude his ability to work. The medical record shows that the Veteran is severely limited due not only to that injury, but to numerous other nonservice-connected disabilities. VA examinations of the Veteran's service-connected conditions show effects from those specific conditions, the effects of which have been well managed by orthotic inserts and have not required any other medical attention. In contrast, the Veteran has sought repeated medical treatment for his nonservice-connected conditions. The Board finds that the effects of the Veteran's spinal conditions and his gout outweigh the effects of his service-connected pes planus and calcaneal spurs. As such, the preponderance of the probative and competent evidence does not tend to support that the Veteran's service-connected conditions alone render him unemployable. 38 C.F.R. §§ 3.341, 4.16. 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); see also Faust v. West, 13 Vet. App. 342 (2000). Therefore, TDIU is denied. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, Associate 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.