Citation Nr: 21041491 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-23 706 DATE: July 9, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities have been shown to preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria are met for entitlement to a TDIU on an extra-schedular basis. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1978 to February 1983. A TDIU is granted. To establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16. In reaching such a 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 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his 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). For schedular consideration of a TDIU, if there is just one service-connected disability, it must be rated at 60 percent or more, and, if there is more than one service-connected disability, at least one must be rated at 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of this determination, disabilities resulting from common etiology or single accident, affecting both upper or lower extremities, or a single body system will be considered as one aggregate or collective disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is also the policy of VA, however, that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). When the Veteran's service-connected disabilities fail to meet the applicable percentage standards enunciated in § 4.16(a), an extra-schedular TDIU is for consideration if there is at least suggestion he is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Service connection is currently in effect for bilateral pes planus (flat feet), rated as 50-percent disabling, and for pseudofolliculitis barbae (ingrown hairs), rated as 10-percent disabling. Thus, the combined rating is 60 percent. See 38 C.F.R. § 4.25. Therefore, the Veteran's service-connected disabilities do not meet the threshold percentage criteria for a TDIU under 38 C.F.R. § 4.16(a). Since, however, there was at least suggestion they nonetheless render him unemployable when the Board previously considered this claim in February 2021, as required, the Board remanded this claim back to the local Regional Office (RO) so that it, in turn, could be referred to the Director of the Compensation Service for initial consideration of whether a TDIU alternatively is warranted on an extra-schedular basis under the special provisions of § 4.16(b). The Board could not grant a TDIU on an extra-schedular basis, in the first instance, but was not precluded from determining whether that referral was warranted. See Barringer v. Peake, 22 Vet. App. 242 (2008). 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). Although the Board does not have the authority to award an extra-schedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extra-schedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). During the pendency of this appeal, the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) issued Ray v. Wilkie, 3 Vet. App. 58 (2019). Ray 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 CAVC 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. As was noted by the RO in a March 2021 Memorandum to the Director of the Compensation Service, VA examinations and treatment records dated throughout the appeal period show the Veteran's service-connected bilateral pes planus limits his employment to positions with only mild physical activities and/or that are sedentary. VA examinations in 2011 and 2017 confirmed such to be the case. Moreover, in 2013, so in the interim, it was noted he used a cane owing to the extent of the pain in his feet attributable to his bilateral pes planus. He was unable to stand for long periods of time. His VA treatment records show that he also used a walker for assistance due to progressing foot pain. At the same time, the Veteran's vocational and educational history show that he has limited education, and that his primary vocational work had been in positions necessitating physical labor such as construction and as a dishwasher in a restaurant. In that regard, a 2012 vocational rehabilitation interview notes that he had no training, education, or skills to allow for suitable employment given his physical limitations. The Director of the Compensation Service nevertheless concluded in a March 2021 Memorandum that a TDIU on an extra-schedular basis is not warranted. 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). Although the Board is required to obtain the Compensation Service Director's decision before awarding extra-schedular TDIU 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); 38 C.F.R. § 4.16(b)). That said, merely because the Board determined that extra-schedular consideration of the claim was warranted does not, in turn, ultimately mean the Board is obligated to grant this benefit. But the Board it must provide adequate reasons and bases for any factual determination later deviating from its earlier decision to remand the claim for referral to the Director of the Compensation Service for extra-schedular consideration. Here, given that the Veteran's service-connected disability (his bilateral pes planus, especially) causes significant functional impairment by way of reduced ability to stand for prolonged periods of time and results in chronic pain and consequent difficulty walking, particularly if not assisted by a cane or walker, and when accepting that his only vocational skill set depends on these functions of the body, the Board finds that his service-connected disability precludes him from obtaining and maintaining substantially gainful employment. In so finding, the Board has considered the Director's March 2021 unfavorable decision. Notably, however, this opinion is unclear in that there is no explanation as to what sort of employment would still be suitable for the Veteran given the effects of his service-connected bilateral foot disability, even when accepting that his receipt of disability benefits from the Social Security Administration (SSA) is not predicated exclusively on his service-connected disabilities. Therefore, an extra-schedular TDIU is warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.