Citation Nr: 22016477 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 11-31 160 DATE: March 22, 2022 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis is remanded. REFERRED During his January 2021 hearing, the Veteran testified that his service-connected bilateral ankle disability resulted in an inability to exercise causing obesity, diabetes, and obstructive sleep apnea. Obesity is not a disability for purposes of VA benefits; hence, it cannot be the subject of service connection. VAOPGCPREC No. 1-2017 (Jan. 6, 2017); see also Marcelino v. Shulkin, 29 Vet. App. 155, 157-158 (2018). However, OGC recognized that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). VAOPGCPREC No. 1-2017 (Jan. 6, 2017). Therefore, in April 2021, the Board of Veterans' Appeals (Board) raised the issues of entitlement to diabetes and obstructive sleep apnea, as secondary to the service-connected bilateral ankle disabilities, both with obesity as an intermediary step, and referred these matters to the Agency of Original Jurisdiction (AOJ) for adjudication. However, the Board notes that no adjudication has been done in these matters. Furthermore, the Board notes that in a July 2021 statement, the Veteran asserted that he cannot exercise due to his service-connected bilateral ankle disability that led to obesity, which caused his sleep apnea, abdominal hernia, diabetes with neuropathy in both legs, and high blood pressure. Hence, the Board finds that the issues of entitlement to service connection for sleep apnea, abdominal hernia, diabetes with neuropathy in both legs, and high blood pressure as secondary to the service-connected bilateral ankle disabilities, to include obesity as an intermediary step, are raised by the record. Consequently, these issues are referred to AOJ for appropriate action. REASONS FOR REMAND The Veteran served on active duty in the U. S. Army from July 1985 to April 1987. This matter comes before the Board on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2014, the Board remanded the claim of TDIU for issuance of a statement of the case and referring the issue of TDIU to Director Compensation Service for extraschedular consideration. In the same decision, the Board denied increased schedular ratings in excess of 20 percent for the right and left ankle disabilities. In a September 2014 decision, the Board vacated the prior denial of the increased rating claim of service-connected bilateral ankle disabilities and remanded the claims to afford the Veteran a hearing before the Board. The Veteran was afforded a hearing in August 2016 before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the hearing is associated with the record. Under a September 2017 Board decision, the claim for increased rating of bilateral ankle disability was denied, and the issues of an extraschedular rating for bilateral ankle disability, a separate rating for neuropathy as secondary to the ankle disability, and TDIU were remanded. Since the VLJ, who presided over the August 2016 Board hearing is no longer with the Board, the Veteran was afforded another opportunity for a Board hearing, which he accepted. Hence, the Veteran testified at a January 2021 hearing before the undersigned VLJ. A transcript of this hearing is associated with the record. Subsequently, in an April 2021 decision, the Board denied increased rating claim for bilateral ankle disabilities, including associated neurological disabilities. In the same decision, the Board remanded the issue of TDIU for additional development. Hence, the RO readjudicated the claim of TDIU, issued a May 2021 supplemental statement of the case denying entitlement to TDIU, and returned the matter to the Board for appellate adjudication. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis is remanded. In November 2009, the Veteran filed a claim of entitlement to TDIU and asserted that his service-connected bilateral ankle disability prevents him from securing or following any substantially gainful occupation. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities are rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's service-connected disabilities are left and right ankle arthritis, status post sprain, each rated as 20 percent disabling. The Veteran's combined disability rating, taking into account the bilateral factor of 3.6 percent, is 40 percent throughout the appeal period, with the exception of two periods of 100 percent rating for convalescence post-surgery. Thus, the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) are not met because the Veteran does not have a single disability rated as 60 percent disabling or combined rating of 70 percent. Even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU on an extraschedular basis may be referred to the Director of Compensation Service for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of the service-connected disabilities. 38 C.F.R. § 4.16(b). Since, the Board cannot decide extraschedular TDIU claims in the first instance, the Board must specifically adjudicate whether to refer the case for consideration of extraschedular TDIU. See Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001); see also. The Veteran contends that he is unable to maintain gainful employment as an industrial painter due to his service-connected disabilities. The Veteran's Social Security records reveal his statement that in April 2011 he lost his fourth job as a result of his ankle disability. The record suggests the Veteran has not maintained consistent employment since 2009. He was found by Social Security Administration to be unable to work based in part on the ankle disabilities, and also on nonservice-connected disabilities. The evidence of record reflects that the Veteran is a high school graduate with no additional training, and his work experience is limited primarily to painting that is manual labor, with other experience in delivery, shipping, and packing. In a February 2010 opinion, the VA examiner stated that the Veteran's ankle disabilities render him unemployable with regard to the only trade he knows being painting with limited educational background. The examiner further stated that the Veteran is physically incapable of doing light, medium, or heavy duty work. During the April 2013 examination, the VA examiner stated that the Veteran's ankle disability impacts his ability to work noting the Veteran is incapable of jobs requiring prolonged standing and/or walking. During the December 2017 examination, the VA examiner noted that the Veteran is not a candidate for employment requiring running and/or ladder climbing. Overall, the evidence of record suggests a reasonable possibility that the Veteran's service-connected disabilities of right and left ankle have rendered him unable to secure and follow substantially gainful occupation based on his educational and occupational history. Thus, TDIU may possibly be warranted based on the Veteran's service-connected disabilities; therefore, extraschedular referral to the Director of Compensation Service is warranted. Therefore, in April 2021, the Board remanded the issue of TDIU and directed the RO to refer the claim of TDIU to the Director of Compensation Service for extraschedular consideration. The Board notes the in an April 2021 correspondence, the RO requested the Veteran to complete a TDIU form and provide employment information. The record suggests that the Veteran did not submit any information regarding current status of his employment and instead submitted his and his wife's statement in July 2021, in which it is asserted that the service-connected bilateral ankle disability precludes the Veteran to obtain and secure a gainful employment. In this regard, the Board notes that there is already a TDIU form in the claims file from November 2009. The Board also notes that in the May 2021 supplemental statement of the case, the RO denied entitlement to TDIU, however, the matter was not referred to the Director of Compensation Service for extraschedular consideration. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO did not substantially comply with the directives set forth in the April 2021 remand since the issue of TDIU was not referred to the Director of Compensation Service for extraschedular consideration. See Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall). Hence, the Board finds that a remand is warranted to refer the claim of TDIU to the Director of Compensation Service for extraschedular consideration. As noted above, the record suggests that the Veteran has not maintained consistent employment since 2009. However, the evidence of record does not have sufficient information whether the Veteran currently has a part time or full time job. Therefore, prior to referring the matter to the Director of Compensation Service, the RO should send another request to the Veteran to provide employment information, including his monthly/annual earnings, specifically from 2009 to the present. The matter is REMANDED for the following action: (Continued on the next page) 1. Request the Veteran to provide employment information, including his monthly/annual earnings, specifically from 2009 to the present. 2. Then refer the case to the Director of Compensation Service for consideration of the issue of entitlement to extraschedular TDIU based on the Veteran's service-connected disabilities. If the Director finds that the Veteran is not entitled to a TDIU on an extraschedular basis, the Director should issue a memorandum explaining the reasons for his or her decision and a summary of the evidence considered. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.