Citation Nr: 22015583 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 10-28 263 DATE: March 18, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from December 2, 2013, to May 8, 2017, is granted. FINDINGS OF FACT 1. The evidence persuasively shows that the Veteran stopped working on December 1, 2013. 2. From December 2, 2013, to May 8, 2017, the Veteran was service-connected for the following disabilities: bilateral hearing loss, tinnitus, hypertension, bilateral plantar fasciitis, right hip tendonitis, and degenerative disc disease of the lumbar spine. 3. From December 2, 2013, to May 8, 2017, the service-connected disabilities were rated 60 percent disabling but did not affect a single body system or result from a common etiology or single accident. 4. The evidence is in equipoise as to whether from December 2, 2013, to May 8, 2017, the Veteran's service-connected disabilities rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for TDIU from December 2, 2013, to May 8, 2017, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1974 to February 1978, from September 1999 to October 1999, from May 2006 to October 2006, and from February 2008 to December 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of a Department of Veterans Affairs (VA) regional office (RO) that granted service connection for a right hip disability. The Veteran perfected an appeal on the initial assignment of a 10 percent disability rating for the right hip disability. In November 2012, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the electronic claims file. In February 2013, the Board took jurisdiction of the issue of entitlement to TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded the issue for further development. In a January 2018 decision, the Board denied entitlement to TDIU. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (the Court). In a November 2018 order, the Court granted a joint motion for remand vacating and remanding the issue of entitlement to TDIU. The joint motion notes that the Board did not define the term "sedentary" anywhere in its decision and that the Board did not discuss a June 2012 VA pain management record documenting the Veteran's increased pain with prolonged sitting. In August 2019, the Board remanded the issue of TDIU for further development. In June 2020, the Board granted TDIU effective May 9, 2017, and remanded the issue of TDIU prior to May 9, 2017, for further development. In July 2021, the Veteran's counsel requested a 90-day extension to submit additional evidence or argument. In August 2021, the Board granted a 90-day extension. In August 2021 and November 2021, the counsel requested additional 90-day extensions. In these requests, the counsel indicated that he would assume the requests were granted unless he received written notification to the contrary. These 90-day periods have expired. In February 2022, the counsel submitted argument and waived all remaining time requested on an extension. Therefore, no further development with regard to an extension is necessary. 1. Entitlement to TDIU prior to May 9, 2017 Governing law and regulations Total disability ratings for compensation based on individual unemployability 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 without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose, disabilities affecting the same body system, e.g., orthopedic, will considered one disability. Similarly, disabilities resulting from a common etiology or a single accident will be considered one disability. 38 C.F.R. § 4.16(a). Even if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1), as discussed above, is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Additionally, the Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran's claims to the Director of Compensation Service for this special consideration. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). In Snider v. McDonough, No. 19-6707 (November 19, 2021), the Court found that pursuant to Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), entitlement to an extraschedular TDIU must be referred to the Director of Compensation Service for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities. Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Analysis The two formal TDIU claims submitted by the Veteran reflect that he stopped working on December 1, 2013. Likewise, the United States Postal Service, his former employer, confirmed in August 2016 that he stopped working there on December 1, 2013. The Veteran has not worked since December 1, 2013. Thus, the evidence persuasively shows that the Veteran stopped working on December 1, 2013. From December 2, 2013, to May 8, 2017, the Veteran was service-connected for the following disabilities: bilateral hearing loss, tinnitus, hypertension, bilateral plantar fasciitis, right hip tendonitis, and degenerative disc disease of the lumbar spine. From December 2, 2013, to May 8, 2017, the service-connected disabilities were rated 60 percent disabling but did not affect a single body system or result from a common etiology or single accident. In the absence of a single disability being rated 60 percent disabling or all disabilities being rated at least 70 percent disabling, the Veteran is not eligible for consideration under 38 C.F.R. § 4.16(a) from December 2, 2013, to May 8, 2017. The Board will consider whether consideration of TDIU on an extraschedular basis is warranted from December 2, 2013, to May 8, 2017. In its June 2020 remand, the Board referred the TDIU to the Director of Compensation Service for extraschedular consideration. Thus, the Board implicitly determined that there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities. In a November 2020 decision, the Executive Director of Compensation Service denied entitlement to TDIU under 38 C.F.R. § 4.16(b). Since the Director has determined an extraschedular evaluation is not warranted, the Board has jurisdiction to decide the merits of the extraschedular aspect of the claim. In his April 2016 formal TDIU claim, the Veteran reported that his service-connected disabilities began affecting his full-time employment on December 1, 2012, the date that he last worked full time and the date he claims he became too disabled to work. He last worked as a mail carrier. In his July 2019 formal TDIU claim, the Veteran reported that he had two years of college specifically an associate degree in applied science for plumbing and that he did not have any additional education and training since he became too disabled to work. A July 2009 VA examination report reflects that the Veteran denied any functional impairment from the plantar fasciitis and lumbar spine disability. The examiner noted that the effect of the right hip disability on the Veteran's usual occupation was an inability to perform functions and activities for an extended period of time without pain. A June 2012 VA pain management clinic treatment record shows that the Veteran has increased pain with prolonged sitting, standing, and lifting. In October 2012, the Veteran's employer found that he had a serious medical condition. His private physician identified the medical conditions as bilateral plantar fasciitis, degenerative disc disease of the lumbar spine, and right hip tendinitis. The doctor indicated that during flare-ups, the Veteran may become incapacitated due to pain and cannot stand, walk, bend, stoop, or lift for a long period of time. The physician stated that the Veteran may be incapacitated three days a month. In March 2013, the Veteran's private physician again indicated that during flare-ups, the Veteran may become incapacitated due to pain and cannot stand, walk, bend, stoop, or lift for a long period of time. The physician stated that the Veteran may be incapacitated three days a month due to bilateral plantar fasciitis, degenerative disc disease of the lumbar spine, and right hip tendinitis. A September 2015 VA examination report reveals that the Veteran reported that he retired because his right hip kept bothering him and because he had enough employment eligibility for retirement. The Veteran also stated that he was not seeking employment because his right hip bothered him. In an August 2016 statement, the Veteran's former employer, the United States Postal Service, indicated that the Veteran worked as a carrier technician. The employer stated that no concessions were made to him by reason of age or disability because he is retired and that he left that job because he retired. A September 2016 VA back examination report shows that the Veteran had episodes of bedrest having a total duration of less than a week during a 12-month period. The examiner stated that the functional impact of the lumbar spine disability is that the Veteran has difficulty with heavy lifting. A September 2016 VA foot examination report reflects that the functional impact of the bilateral plantar fasciitis is that the Veteran has difficulty walking for an extended period of time. A September 2017 VA back examination report reveals that the functional impact of the lumbar spine disability is that the Veteran has problems with heavy lifting and carrying. A May 2019 employability evaluation report reflects that the evaluation was conducted by a private vocational consultant. That consultant noted that the symptoms of the lumbar spine disability, right hip disability, and bilateral plantar fasciitis are significant limitations in prolonged walking, standing, and sitting as well as lifting and carrying objects. The consultant added that the bilateral hearing loss and tinnitus affect his ability to hear and understand work instructions and general conversations. The consultant opined that based on the medical records, ongoing severity of symptoms, and the Veteran's description of his symptoms, it is at least as likely as not the service-connected bilateral hearing loss, tinnitus, lumbar spine disability, right hip disability, and bilateral plantar fasciitis have rendered him unable to secure and follow substantially gainful occupation since at least December 2013. The private vocational consultant noted that the Dictionary of Occupational Titles defines sedentary employment as the following: Work that involves exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, pus, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. The private vocational consultant stated that the Veteran is unable to stand for more than 15 minutes or walk more than 40 minutes due to pain associated with the service-connected orthopedic disabilities and that he would be precluded from performing work within the sedentary physical demand level, as it requires up to occasional standing and walking. The consultant added that the Veteran did not possess any skills, including computer skills, that readily transfer to sedentary occupations and are typically required of sedentary occupations. The consultant indicated that the Veteran's plumbing skills are no longer applicable because these skills were obtained 35 years, because he has not worked recently in that field, and because these skills do not transfer to other occupations. The consultant also stated that the Veteran could not work as a plumber because of an inability to perform heavy work. A December 2019 VA hip examination report shows that the functional limitations of the right hip in performing manual labor involve repeated squatting, climbing ladders, ascending or descending multiple flights of stairs, and being on his feet continuously for over two consecutive hours without breaks. The examiner stated that there is no evidence of a functional limitation that would prevent work in a sedentary occupational setting. The Board places considerable weight on the May 2019 employability evaluation report because the report is thorough and, more specifically, because the consultant addresses sedentary employment. The Board also places great weight on the evidence of the pain from the orthopedic disabilities precluding prolonged sitting. The evidence is in equipoise as to whether from December 2, 2013, to May 8, 2017, the Veteran's service-connected disabilities rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. Accordingly, entitlement to TDIU from December 2, 2013, to May 8, 2017, is in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.