Citation Nr: 21031574 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-12 030 DATE: May 24, 2021 ORDER A total disability based on individual unemployability (TDIU) from January 20, 2015, but no earlier, is granted. FINDINGS OF FACT 1. The Veteran's service-connected bilateral pes planus and right ankle sprain caused him to be unable to secure or follow substantially gainful employment from January 20, 2015 onward. 2. The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities prevented him from securing or maintaining gainful employment prior to January 20, 2015. 3. The Veteran retired from his career as a Deputy Marshal due to his nonservice connected back condition. CONCLUSION OF LAW The criteria for entitlement to a total disability based on individual unemployability (TDIU) from January 20, 2015, but no earlier, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1953 to June 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Court of Appeals for Veterans Claims (the Court) granted a Joint Motion for Remand (JMR) that vacated and remanded a June 2020 Board decision that granted a TDIU from May 11, 2016. The parties agreed that the Board did not consider whether the Veteran was entitled to a date prior to May 11, 2016 for a TDIU especially since he met the schedular requirements from January 20, 2015 under 38 C.F.R. § 4.16(a). Accordingly, on remand, the Board must determine whether the Veteran was totally disabled prior to May 11, 2016. Entitlement to TDIU from January 20, 2015, but no earlier, is granted. A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The 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. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In this case, the Board finds that the Veteran met the schedular criteria as of January 20, 2015 when his combined schedular was 60 percent for his service-connected pes planus, 50 percent, and right ankle sprain, 10 percent, which the Board finds can be combined as "one disability", since they both effect his orthopedic system. 38 C.F.R. §§ 4.16(a), 4.25. Therefore, the only issue is whether his service-connected bilateral pes planus and right ankle sprain rendered him unable to secure or follow substantially gainful employment from January 20, 2015. The Veteran retired from his last position as a Deputy Marshall in 1979. See VA 21-8940 Veterans Application for increased Compensation Based on Unemployability at page 3. After discharge from service, the Veteran worked as a sheriff and afterwards at a beer company before his final position as a Deputy Marshall. See VA Examination received 12/28/1998 at page 1. As to educational attainment, the record shows that the Veteran completed 10th grade with some educational classes afterwards. See Capri received 3/20/2015 at page 11. The Veteran was provided a VA examination in October 2015 for his pes planus and right ankle sprain. The October 2015 VA examiner diagnosed the Veteran with bilateral flat feet, as of November 1959, and with degenerative arthritis as January 2015. The degenerative arthritis was found to be a progression of his service-connected pes planus. See C&P Exam perceived 10/14/2015 at page 10. At the time of the examination, the Veteran used a cane and had customized shoes. Id. at page 7. The October 2015 VA examiner opined that his bilateral flat feet residuals impacted his ability to do work requiring prolonged standing or walking, heavy lifting, and carrying. Id. at page 10. In October 2015, the Veteran also received a VA examination for his right ankle disability. The Veteran was diagnosed with right ankle sprain as of 1959. See C&P Exam received 10/14/2015 at page 2. The October 2015 examiner opined that the Veteran's right ankle sprain impacted his ability to ascend and descend stairs and to endure prolonged standing and walking. Id. at page 3 and 10. Given that the Veteran has a 10th grade education and past career experience would necessarily require him walk and stand for prolonged periods, the Board finds that the Veteran was unable to secure or follow substantially gainful employment from January 20, 2015. In making that finding, the Board concludes that the Veteran was also unable to follow sedentary employment since his educational attainment and lack of computer skills and clerical experience would likely not qualify him for those positions. See Medical Treatment Record-Non-Government received 5/03/2021 at page 5. Therefore, entitlement to a TDIU from January 20, 2015 is warranted. Entitlement to a TDIU prior to January 20, 2015 is denied The Veteran, via his attorney representative, has also raised the issue of entitlement to a TDIU prior to January 2015. See Appellate Brief received 5/03/2021 at page 3. However, in the same brief, the representative stressed asked the Board to granted TDIU effective January 20, 2015. Id. at 3, 5. In light of some evidence indicates that the Veteran was not working prior to January 2015, the Board will consider TDIU prior the date granted herein. In a private vocational assessment, A.H.J., a vocational expert, stated that it was more likely than not that the Veteran was unable to secure and follow substantial gainful employment because of his service connected pes planus and right ankle sprain since 1979, the date he was last employed. See Medical Treatment Record received 5/03/2021 at page 6. The Board gives the vocational expert's opinion no probative weight since it does not acknowledge the ample medical evidence on record that attributes the Veteran's retirement to his nonservice-connected back disability. Accordingly, the Board finds that the opinion is based on an inaccurate factual premise, and therefore entitled to no probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (U.S. 1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). Specifically, in a December 1998 VA examination the Veteran attributed hs retirement to a back disability. See VA Examination received 12/28/1998 at page 2. Further, the Veteran stated to the December 1998 VA examiner that his service-connected flat feet did not bother him much if at all, and that he was only there to arrange to claim shoes that he was eligible to receive. Id. at page 1. Relatedly, the December 1998 VA examiner diagnosed the Veteran had minimal pes planus bilaterally. Id. at page 3. On physical examination, the Veteran was able to rise up on his toes 20 times lifting his entire 180-pound weight and only quit due to his back pain and not his foot pain. Id. at page 2-3. Although, the Veteran did assert a belief that the shoes would help him with his back disability, the Board notes that service connection for a back condition (on 38 U.S.C. § 1151 basis) has been the subject of a final denial. See Rating Decision received 7/25/2016 at page 6. Moreover, the Veteran's medical records also show that in his social history, prior to his claim for a TDIU, he attributed his retirement in 1979 to his back condition. See Capri received 3/20/2015 at page 11. Also, prior to January 20, 2015, the Veteran did not met the schedular requirement for a TDIU since his combined schedular rating was 10 percent. Given that the Veteran's pes planus was moderate (10 percent per 38 C.F.R. § 4.71a, DC 5276) during that time for the reasons discussed in the prior paragraph, the Board finds that the Veteran's service-connected disability did prevent him from being unable to secure and follow a substantially gainful occupation. See 38 C.F.R. § 4.16(b). Accordingly, referral of this case for extraschedular consideration is not warranted, and entitlement to a TDIU prior to January 20, 2015 is denied. Although, the Veteran in an affidavit later stated that his retirement was due to his service-connected pes planus and right ankle sprain, the Board finds the statements made in his contemporaneous medical record and his statements made during his December 1998 VA medical examination to carry more weight. See Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, and desire for monetary gain); see also Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, 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.