Citation Nr: 22003455 Decision Date: 01/24/22 Archive Date: 01/24/22 DOCKET NO. 15-21 150 DATE: January 24, 2022 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected left ankle disability has prevented him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.59, 3.340, 3.41, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from April 1977 to April 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), denying a rating in excess of 20 percent for the Veteran's left ankle disability. This matter was previously before the Board in August 2019 and March 2021, at which time it was remanded to the AOJ for development. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). During the pendency of the Veteran's appeal, his increased rating claim for a left ankle disability was increased to 40 percent rating and special monthly compensation (SMC) based on loss of the left foot was awarded for the entire appeal period. In October 2020, the AOJ awarded SMC and a 40 percent rating effective February 11, 2016. Then, in March 2011, the Board awarded SMC and a 40 percent rating for the period from May 4, 2011 to February 11, 2016. Accordingly, the issues of increased rating and SMC are no longer before the Board. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in August 2019. A transcript of the hearing has been included in the record. In a January 2022 letter, the Veteran was notified that the VLJ who presided at the August 2019 Board hearing was no longer employed at the Board, and he was entitled to request another hearing by another VLJ. The letter advised the Veteran that he could request a new hearing within 30 days, and if he did not respond, the Board would proceed to adjudicate his claim. The record is absent of the Veteran's response regarding another hearing on this matter. Therefore, the Board will proceed to consider the case on the evidence of record. TDIU In order 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. See 38 U.S.C. § 1555; 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, 529 (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 non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16 (a), provide for a TDIU when, due to a service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16 (b). Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. 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. The non-economic component includes consideration of: Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factual Background As the Veteran's TDIU claim on appeal was raised in the context of his increased rating claim for his already established left ankle disability, the appeal period begins on May 4, 2011. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); 38 C.F.R. § 3.400 (o)(2). As of May 4, 2011, the Veteran was in receipt of a 40 percent rating for his left ankle disability. The Veteran was also in receipt of a 10 percent rating for tinnitus beginning on February 4, 2020, which resulted in a combined schedular rating of 50 percent. Additionally, the Veteran has been in receipt of a noncompensable rating for surgical scars of the left ankle as of January 9, 2012. The Veteran's service-connected disabilities do not render him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, all Veterans who are 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). Accordingly, the question becomes whether entitlement to a TDIU on an extraschedular basis is warranted during the appeal period. The record shows that the Board remanded the issue of entitlement to a TDIU in March 2021 for the AOJ to refer the case to the Director of Compensation Service for consideration of whether entitlement to a TDIU was warranted on an extraschedular basis under 38 C.F.R. § 4.16 (b). The AOJ referred the case to the Director of Compensation Service in October 2021 and recommended that entitlement to a TDIU on an extraschedular basis be granted. However, the AOJ also noted in this memorandum that none of the available evidence supports the Veteran's contention that his service-connected disability prevents all types of gainful employment. Consistent with this notation, the Director determined in November 2021 that a TDIU was not warranted on an extraschedular basis. As these steps have been completed, the Board may address whether entitlement to a TDIU is warranted at any point in the appeal period, de novo, with the Directors' decisions being in essence the de facto decisions of the AOJ and, as such, not evidence. See Wages v. McDonald, 27 Vet. App. 233, 238-239 (2015). In a VA Form 21-8940 submitted in April 2021, the Veteran reported that he was unable to secure or follow substantially gainful employment as a result of his left ankle disability. He reported that he last worked full time, and became too disabled to work, in July 2001. The Veteran elaborated that he was unable to maintain weight on his ankle, walk, or run. He further reported that his job required a lot of walking as well as running during emergencies. Thus, the Veteran indicated that he was forced to retire. The Veteran identified his recent work history as including working 40 hours a week as a correctional officer from June 1989 to July 2001. Additionally, the Veteran noted that he completed 2 years of high school and he denied receiving any education or training since he became too disabled to work. In addition to this evidence, Social Security Administration (SSA) records from April 2003 document past work of a cable installer and correctional officer. SSA classified these positions as skilled work performed at the light to medium exertional level. SSA advises that the full range of light and medium work requires standing and walking approximately six hours in an eight-hour workday. See Social Security Ruling 83-10: Titles II and XVI: Determining Capability to Do Other Work. SSA records further reveal that the Veteran was awarded disability effective October 1, 2009, based on a finding that the combined effects of a lumbar disability, diabetes mellitus, dysfunction of the left ankle and right knee, affective disorder, and gastroparesis rendered him unable to sustain work at any exertional level. With the exception of his left ankle disability, none of these conditions are service connected. Nevertheless, examining and treating records reveal that the Veteran's left ankle disability alone interferes with his ability to maintain substantially gainful employment at any exertional level. In March 2012, the Veteran was afforded a VA examination to assess the nature and severity of his left ankle disability. At this time, the Veteran reported that he retired from his work as a correctional officer due to left ankle pain. Contributing factors to disability noted by the examiner included less movement than normal, pain on movement, swelling, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. Additionally, the examiner indicated that the Veteran takes Mobic, gabapentin, Lorcet, and morphine for pain and uses a cane at all times to ambulate. Ultimately, the examiner concluded that the Veteran's chronic left ankle disability interferes with his ability to obtain and maintain employment, which entails running, climbing, stairs/ladders, lifting or carrying objects greater than 20 pounds, construction/labor, and walking or standing for more than 5 minutes continuously. The examiner further concluded that the Veteran's condition does not interfere with the Veteran's ability to maintain light desk/office employment, especially if accommodations are made to the workspace. Another VA examination was provided in September 2014 to assess the nature and severity of the Veteran's left ankle disability. No medications were listed at this time, but it was noted that the Veteran used a cane on a regular basis. Contributing factors to disability noted by the examiner included pain on movement, disturbance of locomotion, and interference with standing. However, the functional impact of the Veteran's left ankle disability on his ability to perform occupational tasks was described by the examiner only as daily pain with limited range of motion. Additionally, the Veteran was provided a VA examination in February 2017 to evaluated to nature and severity of a lumbar condition. At this time, the VA examiner concluded that the Veteran has multiple medical conditions causing bilateral lower extremity weakness and sensory loss, and as a result, it is difficult to ascribe his functional loss to a specific condition. In December 2019, another VA examiner evaluated the nature and severity of the Veteran's left ankle disability. The examiner noted that the Veteran had severe reduction in motion, severe weakness, and severe ankylosis of the left ankle. The examiner further indicated that the Veteran had fatigue, pain, weakness, and marked instability of the left ankle, which has caused multiple falls. Additionally, the examiner concluded that the Veteran's left ankle functioning is so diminished that amputation with prosthesis would equally serve the Veteran. From these findings, the examiner concluded that the Veteran's left ankle condition severely impairs his ability to perform jobs that require heavy lifting, repetitive bending, prolonged standing, or prolonged walking. The examiner elaborated that the Veteran's severe physical limitations and severe pain also impair his ability to perform light work duty that is mainly sedentary and concluded that the Veteran could not work at any capacity. In September 2020, a different VA examiner offered an opinion, in which he concluded that the Veteran's ankle has a severe loss of range of motion and is permanently in a plantar flexed position. The examiner elaborated that this is a rare condition where the Veteran's ankle is almost, but not completely, ankylosed. Similarly, a VA examiner concluded in September 2021 that the Veteran has gross limitations of his left foot where he would not be able to ambulate or stand for an extended period of time. Finally, a VA examiner, who evaluated the Veteran in May 2021 concluded that the Veteran experiences instability, weakened movement, and swelling of the left ankle. The examiner further concluded that the Veteran's left ankle functioning is so diminished that amputation with prosthesis would equally serve the Veteran. From these findings, the examiner concluded that the Veteran's ability to perform occupational tasks. Specifically, the examiner noted that the Veteran has instant ankle pain upon walking and veteran has to sit every two to three minutes to stop and rest due to his ankle pain. The examiner further noted that the Veteran cannot maneuver stairs, lift, or bend to any degree, and he is only able to stand for one minute at a time. Thus, the examiner concluded that chronic left ankle pain interferes with the Veteran's ability to do all of his activities of daily living. In addition to this evidence, treating records reveal that the Veteran experienced foot drop as early as July 2011. They further reveal that the Veteran ambulated with a cane and used a brace to maintain balance throughout the appeal period. Despite these aids, the Veteran reported having falls on numerous occasions. Additionally, treating records reveal that the Veteran was followed by pain management throughout the appeal period and prescribed narcotic medications on a regular basis. Analysis Based on the foregoing, the Board finds that the Veteran's service-connected left ankle disability renders him unable to secure or follow a substantially gainful occupation, and a TDIU is warranted beginning on May 4, 2011. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has considered the Veteran's functional capacity and work experience in determining that no type of employment would appear to be appropriate for the Veteran. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The negative functional effect of the Veteran's left ankle disability would preclude even sedentary work, as the condition interferes with the Veteran's ability to ambulate and to maintain attention or focus. While the Veteran has other service-connected disabilities, his left ankle disability alone prevents him from working. In reaching this conclusion, the Board finds that the December 2019 and May 2021 VA examiner opinions are highly probative. To recap, the December 2019 VA examiner concluded that the Veteran could not work at any capacity due to severe limitations and severe pain of the left ankle. This examiner noted that the Veteran experiences severe weakness, marked instability, and severe ankylosis of the left ankle. Meanwhile, the May 2021 VA examiner concluded that chronic left ankle pain interferes with the Veteran's ability to perform all of his activities of daily living. This examiner also concluded that the Veteran is unable to lift, bend, run, or maneuver stairs to any degree and is unable to stand for more than one minute. Consistent with these findings, VA examiners in September 2020 and September 2021 concluded that the Veteran has gross limitation of his left foot. The September 2020 VA examiner elaborated that the Veteran has a rare condition where his ankle is nearly entirely ankylosed. Contrary to these opinions, the May 2012 VA examiner concluded that the Veteran's condition would not interfere with his ability to maintain a light desk/office job, especially if accommodations were made in the workspace. The Board finds that this opinion is not adequate because the examiner did not consider the effects of medication on the Veteran's ability to perform tasks. In this regard, it is noteworthy that the Veteran has taken narcotic medication to manage his pain throughout the entire appeal period. This medication can reasonably be expected to interfere with the focus and attention required of an office job. Moreover, the Veteran has no experience working in an office and he does not have a high school diploma. The Board finds that these factors further diminish the likelihood that the Veteran is capable of sustaining gainful employment in an office job. Accordingly, the Board finds that the December 2019 and May 2021 VA opinions are more probative than the May 2012 VA opinion. The Board also finds that the opinion offered by the September 2014 VA examiner is less probative than the December 2019 and May 2021 VA examiner opinions. This examiner concluded that solely that the Veteran's daily pain and limited range of motion affects his ability to perform occupational tasks. However, the examiner did not identify specific tasks or elaborate on the extent to which the Veteran would be limited. Accordingly, the Board finds that this opinion is not adequate and affords it no probative weight. Finally, the Board has considered the opinion offered by the February 2017 VA examiner. This examiner concluded that the Veteran has multiple medical conditions causing bilateral lower extremity weakness and sensory loss that makes it difficult to ascribe functional loss to a specific condition. However, specific limitations of the left ankle have been identified by numerous VA examiners and treating physicians. Moreover, these limitations are severe and have been noted to cause significant physical limitation. Accordingly, the Board finds that the February 2017 VA opinion is not probative. Based on the most probative evidence of record, the Board finds that the Veteran's service-connected left ankle disability renders him unable to secure or follow a substantially gainful occupation. The record reflects that the Veteran has not worked in a fulltime or in a substantially gainful position since 2001. Thus, the Board finds that a TDIU is warranted effective May 4, 2011. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.