Citation Nr: 23001663 Decision Date: 01/10/23 Archive Date: 01/10/23 DOCKET NO. 15-17 884 DATE: January 10, 2023 ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU), on an extraschedular basis. ORDER Entitlement to TDIU on an extraschedular basis is granted. FINDING OF FACT The Veteran's service-connected left ankle, right ankle, and left shoulder disabilities preclude him from obtaining and maintaining substantially gainful employment, consistent with his level of education and prior employment history. CONCLUSION OF LAW For the period on appeal, the criteria for a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from March 1980 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) from a February 2015 rating decision. By way of background, this matter was previously before the Board in August 2018, January 2019, July 2019, August 2021, and most recently in February 2022. The Board in its February 2022 decision remanded the claim for further development. The claim has since been returned to the Board for further appellate action. The Board finds there was substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Extraschedular TDIU The Veteran contends that he is unemployable due to his service-connected disabilities to include a left shoulder disability, left ankle sprain with arthritis, right ankle fracture with arthritis, bilateral hearing loss, and tinnitus. Specifically, he asserted that he is a fall risk due to his service-connected disabilities and that no employer will risk the liability that comes with hiring him. He also asserts that his left shoulder disability precludes him from lifting, carrying, pushing, pulling, or reaching overhead. 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 shall be rated totally disabled. See 38 C.F.R. § 4.16. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38C.F.R. §§3.340, 3.341, 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). To prevail on an extraschedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating 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 one can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16 (b). The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce un-employability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In the instant matter, the Veteran is currently service connected for a left shoulder disability, left ankle sprain with arthritis, right ankle fracture with arthritis, bilateral hearing loss, and tinnitus. A December 2019 VA examination report reflected that the Veteran was not able to perform sedentary work due to his left and right ankle disabilities. Sedentary work was defined in the examination report as exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, or pull. The examination report further stated that sedentary work involved sitting most of the time but, may involve walking or standing for brief periods of time and that jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. The VA examiner determined that on this basis, the Veteran's service-connected ankle disabilities precluded sedentary work. In an August 2022 VA medical opinion, the examiner opined that the Veterans' left ankle sprain with arthritis prevented non-sustained standing or walking, running jumping, as well as any prolonged ambulating. However, the examiner found that sedentary activities would not be affected. The examiner explained that sedentary activity was activity where weight is not placed on the feet. Another VA medical opinion from August 2022 was provided regarding the Veteran's right ankle, in which the examiner found that the right ankle interfered with physical activities including non-sustained standing and walking, prolonged ambulating, weightbearing, repetitive standing, walking, lifting, pushing, pulling, and squatting. Again, this opinion reflected that the Veteran was capable of sedentary activities, where weight is not placed on the feet. In another August 2022 VA medical opinion regarding the Veteran's service-connected left shoulder, the examiner found that the condition interfered with overhead movements, lifting, pushing, pulling, reaching, and carrying due to reduced grip strength due to pain. The results of this examination show that the Veteran would not be capable of these actions that may occasionally be required even in sedentary work. Also in August 2022, a VA medical opinion was provided to determine what symptoms and limitations were attributable to the Veteran's service-connected disabilities and what symptoms and limitations were attributable to non-service-connected disabilities. The examiner stated that the Veteran's non-service-connected left foot drop caused the need for an assistive device or cane due to instability. The examiner also found that even without the left foot drop, the left ankle caused instability and prevented non-sustained standing and walking, running, jumping, as well as prolonged ambulating and weight-bearing. As such, the Veteran's service-connected left ankle alone would prevent him from performing any activity with weight placed on his feet. Although the August 2022 VA examiners stated that the Veteran was capable of sedentary activities, the Court has held that because VA does not define "sedentary employment" in its regulations for a TDIU, the Board must determine the meaning on a case-by-case basis. Withers v. Wilkie, 30 Vet. App. 139 (2018). In this case, the Board finds that the Veteran is not capable of sedentary work and this finding is supported in the December 2019 VA examination report. This report specifies that sedentary work included being capable of exerting a negligible amount of force frequently to lift, carry, push, and pull, and walking or standing for brief periods of time. The August 2022 medical opinions specify that the Veteran's service-connected right and left ankles and left shoulder preclude him from non-sustained standing or walking even for brief periods, as well as occasionally be able to lift, carry, push, and pull. Further, they state that the Veteran is only capable of activity where weight is not placed on the feet. As such, the Veteran is limited to being seated and is precluded from even occasional upper body activity such as overhead reaching, lateral reaching, lifting, pushing, pulling, and carrying. Therefore, the Board finds that the Veteran is physically not able to perform sedentary employment. Last, we turn to the Veteran's education and prior job history. The Veteran has a high school education. His employment history reveals that his entire career was limited to physical trades; his military occupational specialty was infantryman, post-service he was a custodian and a security guard. As such, the Board finds that the Veteran's training and education only qualify him for physical work; there is no evidence of record of any training in areas where one is not bearing weight on the feet or moving the arms with negligible force on occasion. The Veteran's service-connected left ankle, right ankle, and left shoulder disabilities preclude him from obtaining and maintaining substantially gainful employment, consistent with his level of education and prior employment history. Entitlement to extraschedular TDIU for the period on appeal is therefore granted. The Board notes that the Veteran is also service connected for bilateral hearing loss and tinnitus, however, the evidence of record does not support a finding that his hearing disabilities preclude him from employment. See, December 2019 VA audiological examination. That being the case, the Board still finds that the Veteran is entitled to extraschedular TDIU based on his left and right ankles, and left shoulder disabilities for the period on appeal. Entitlement to extraschedular TDIU is granted for the entire period on appeal. J. JACK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Palidar, E. 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.