Citation Nr: 22019150 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 16-12 639 DATE: March 31, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), prior to November 2, 2016, to include on an extraschedular basis, is denied. FINDING OF FACT For the period prior to November 2, 2016, the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16 (b), have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1974 to February 1976. In October 2018, August 2020, April 2021, and August 2021, the Board remanded the claim on appeal for further development and adjudication. The Board finds that there was substantial compliance with its prior remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Entitlement to a TDIU, prior to November 2, 2016, to include on an extraschedular basis, is denied. The Veteran contends that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation and therefore he should be awarded a TDIU for the entire period of his appeal. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 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. 38 C.F.R. § 4.16 (a). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is 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. The ultimate question, however, 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). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Moreover, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include 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 the 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. The Veteran contends that he was unable to maintain substantially gainful employment due to his service-connected disabilities. In the instant case, VA received his claim for a TDIU on August 10, 2011, and, in an August 2020 Board decision, the Veteran was awarded a TDIU effective November 2, 2016, the date upon which he met the schedular criteria. For the period prior to November 2, 2017, the Veteran was service connected for major depressive disorder rated as 50 percent disabling (increased to 70 percent disabling from August 8, 2018), and for varicose veins of the left calf rated as 10 percent disabling from August 10, 2011 (increased to 40 percent disabling from November 2, 2016, and then reduced to 20 percent disabling from November 19, 2018). Therefore, the Veteran does not meet the schedular criteria for consideration of a TDIU for the period prior to November 2, 2016. Nonetheless, as the Veteran alleged that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation, the Board remanded the appeal in August 2020, April 2021, and August 2021, in pertinent part, for referral to the Director for consideration of assignment of an extra-schedular TDIU under the provisions of 38 C.F.R. § 4.16 (b). In December 2020, January 2021, June 2021, and January 2022, the Director reviewed the record and opined that an extra-schedular TDIU was not warranted. Nonetheless, the Board must now undertake its own de novo review of the claim. Regarding the Veteran's employment history, he reported in his VA Form 21-8940 that he worked as a driver from March 2015 to March 2016 and for VA from December 2016 to August 2017. The Veteran indicated that in August 2017 he became too disabled to work due to his mental health and left leg disabilities. He also indicated that he completed two years of college as well as some IT training in 2015. As pertinent to the functional impairment associated with the Veteran's service-connected disabilities, in March 2013 he submitted a statement from private physician Dr. L. Dr. L. reported that the Veteran had varicose veins and plantar fasciitis that limited his ability as: frequently (1/3 to 2/3 of an 8-hour workday) lift 26 to 50 pounds, occasionally (up to 1/3 of an 8-hour workday) lift 26 to 50 pounds, stand a total of less than 1 hour during an 8-hour workday or stand and/or walk continuously for 30-45 minutes, sit for 8 hours per 8-hour workday. It was noted that the Veteran should prop up both legs and feet for 30 minutes 4 times a day. The Veteran was able to perform occasional bending and frequent reaching, handle, or finger, but never kneeling. The examiner further noted that environmental limitations would include occasional heights, machinery, temperature extremes, but never fumes or vibration. In August 2014, the Veteran underwent a VA Artery and Vein Conditions examination. The examiner noted a diagnosis of varicose veins of the left lower leg. The Veteran reported that he had had the veins for years and dealt with constant pain. In 2013, the Veteran had a stab phlebectomy and he wore a compression stocking, but he stated that he continued to experience pain. Upon examination, the examiner noted aching and fatigue after prolonged standing and walking, persistent stasis pigmentation, intermittent edema, and constant pain at rest. The examiner noted functional impact on the Veteran's ability to work in that his condition would prevent him from engaging in employment requiring prolonged standing or walking. However, the examiner did not indicate that the Veteran would have difficulty with sedentary employment. In April 2015, the Veteran underwent a VA Mental Health examination. The examiner noted that the Veteran had a diagnosis of major depressive disorder. The examiner found that the Veteran's disability caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported that he had been let go from his last job due to his difficulty standing due to his varicose veins pain, and that he withdrew from his ITT program due to interference of pain and inability to complete program requirements. He reported that he worked as a pastor offering support to parishioners and taught a course in theology. In a June 2016 Charter Communications Health Care Provider Questionnaire, the examiner noted that the Veteran had knee pain that affected his ability to perform job functions. The examiner found that the Veteran could not stand or walk for extended periods due to leg pain, and that job modifications included limited walking, stopping, and standing. The Board notes that while the Veteran reports bilateral knee arthritis and has sought service connection for such, he is not service connected for it. Therefore, such cannot be considered in contemplation of his claim for a TDIU. In November 2016 the Veteran underwent another VA Artery and Vein Conditions examination. The examiner noted that the Veteran had a diagnosis of varicose veins and that upon examination the Veteran experienced aching and fatigue in the left lower leg after prolonged walking or standing, peristent stasis pigmentation, intermittent edema, and constant pain. The Veteran reported that he used braces and a cane for his bilateral knee arthritis. The examiner noted functional impact on the Veteran's ability to work in that he could not walk or stand for extended periods of time. However, there was no indication that the Veteran would have trouble performing sedentary work. And again, the Board notes that the Veteran is not service connected for his bilateral knee claims and therefor such cannot be considered in the Veteran's claim for a TDIU. VA treatment records are silent for any additional limitations regarding the Veteran's ability to secure and follow substantially gainful occupation due to his service-connected disabilities. Social Security Administration (SSA) records show that on September 2, 2014, the Veteran applied for disability due to a bad leg, severe pain, and severe arthritis in both knees. October 19, 2014, medical determination showed primary severe impairment of osteoarthritis and allied disorders and secondary non-severe impairment of other disorders of the gastrointestinal system, essential hypertension, and dermatitis. SSA determined that the Veteran was not disabled as the totality of evidence indicated that the Veteran could perform light work tasks. In addition, the records indicated that the Veteran's work history included working as a carpenter until May 2011, a sales associate until April 214 and a courier until September 2014. Subsequently, SSA found that the Veteran was disabled due to his left leg condition, bilateral knee arthritis, and mild depression. Director of Compensation Services administrative decisions in December 2020, January 2021, June 2021, and January 2022 all found that the available evidence did not support the Veteran's contention that his service-connected disabilities prevented all types of gainful employment prior to November 2, 2016. Based on a review of the foregoing evidence, the Board finds that a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16 (b) is not warranted for the period prior to November 2, 2017. In this regard, as detailed above, the record reflects that his service-connected disabilities alone did not prohibit him from securing and following a substantially gainful occupation consistent with his education and work history. While it is shown that he was significantly impacted in regard to manual employment, he was able to execute the physical and mental acts necessary to perform sedentary employment. Thus, even when resolving all doubt in the Veteran's favor, the Board finds that entitlement to a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16 (b) is not warranted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.