Citation Nr: 26001925 Decision Date: 02/11/26 Archive Date: 02/11/26 DOCKET NO. 13-07 362 DATE: February 11, 2026 ORDER Entitlement to a total rating based on individual unemployability (TDIU) due to service connected crushed foot injury to the left foot is granted. FINDING OF FACT Throughout the period on appeal, the Veteran's service connected crushed foot injury to the left foot rendered him unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to a crushed foot injury to the left foot have 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 from December 1961 to December 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated December 17, 2011 issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2014, the Board issued a decision which denied the claim of entitlement to an increased rating for a crushed foot injury to the left foot, and remanded claims of entitlement to an effective date earlier than August 17, 2011 for the grant of service connection for a crushed foot injury to the left foot and entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2015 Order, the Court granted a Joint Motion for Partial Remand of the parties as to the denial of an increased rating for a crushed foot injury to the left foot and to the extent that it did not adequately address whether entitlement to a TDIU was properly before the Board and remanded the case to the Board for action consistent with the Joint Motion for Partial Remand. The Court did not disturb the Board's remand of entitlement to an earlier effective date for service connection for crushed foot injury to the left foot and service connection for tinnitus and bilateral hearing loss. In August 2015, the Board issued a decision which denied the claim of entitlement to an effective date earlier than August 17, 2011 for the award of service connection for a crushed foot injury to the left foot and remanded the service connection claims for bilateral hearing loss and tinnitus. The Veteran did not appeal the August 2015 Board decision and it is final. A July 2020 rating decision granted the Veteran's claims for service connection for bilateral hearing loss and tinnitus and assigned an initial rating for each disability. As this decision represents a full grant of the benefits sought with respect to these claims for service connection, such issues are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). In June 2021, the Board issued a decision which denied an increased rating for a crushed foot injury to the left foot and remanded entitlement to a TDIU. The Veteran did not appeal the June 2021 Board decision and it is final. In January 2023, the Board issued a decision which denied entitlement to a TDIU. The Veteran subsequently appealed that decision to the Court. In a December 2023 Order, the Court granted a Joint Motion for Remand of the parties and remanded the case to the Board for action consistent with the Joint Motion for Remand. In July 2024, the Board issued a decision which denied entitlement to a TDIU. The Veteran subsequently appealed that decision to the Court. In a July 2025 Order, the Court granted a Joint Motion for Remand of the parties and remanded the case to the Board for action consistent with the Joint Motion for Remand. An August 2025 letter informed the Veteran that the Court issued a decision in July 2025 that remanded (sent back) his case to the Board for readjudication, that the Veteran had the opportunity to submit additional argument and/or evidence in support of his appeal before the Board proceeds with readjudication and that the Board will wait to make a decision on his appeal for 90 days from the date of this letter to provide him the opportunity to submit argument and/or evidence. The Veteran's representative submitted an Informal Hearing Presentation in January 2026. Entitlement to a TDIU due to service connected a crushed foot injury to the left foot is granted. The Veteran contends that his service connected crushed foot injury to the left foot prevents him from securing or following any substantially gainful employment. See May 2012 Correspondence. 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). 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, supra. 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); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering a 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 a veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering a 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). A claim for TDIU may be filed as a freestanding claim. In addition, TDIU may be an element of a claim for an increased disability rating when unemployability is raised by the record. See Rice v. Shinseki, supra. In the instant case, and as of the date of this decision, service connection is in effect for a crushed foot injury to the left foot, rated as 10 percent disabling prior to February 26, 2020 and as 20 percent thereafter; left ankle, painful motion, rated as 10 percent disabling from August 17, 2011; tinnitus, rated as 10 percent disabling from August 17, 2011; and bilateral hearing loss, rated as noncompensable from August 17, 2011. The Veteran's combined rating for compensation is 30 percent from August 17, 2011 and 40 percent from February 26, 2020. The Board finds a claim of TDIU was raised by the record pursuant to the Veteran's claim for an increased rating for his service connected crushed foot injury to the left foot. See Rice v. Shinseki, supra. The Veteran contends that his crushed foot injury to the left foot renders him unable to obtain and maintain substantially gainful employment. See May 2012 Correspondence. Therefore, the Board may proceed with adjudicating a TDIU claim. During a March 2017 VA examination, the Veteran reported that he last worked full-time in 1997 as a paint inspector for automobiles. He stated that he was retired. Turning to the evidence of record, in a June 2011 private statement associated with the claim file in August 2011, his physician stated that the Veteran experienced soreness to the lateral aspect of his left foot and diminished pain on palpation of Lis Franc area dorsally, the base of the fifth metatarsal left foot, consistent with that of strain and peroneus brevis tendinitis. Additionally, the statement indicated he was previously given over the counter arch support, which diminished the pain. Finally, his private physician stated that he was "fairly stable at this time." Further, in a July 2012 private statement associated with the claim file in August 2012, his physician indicated that he used over the counter arch support and was doing better with pain, and that if he "over does it, or is on ladders" he would experience manageable discomfort. The Veteran reported that he cannot work part time due to difficulty going downstairs because his foot does not bend well, and he cannot stand for long periods of time. See November 2011 VA Examination; see also May 2012 Correspondence. November 2011 and August 2012 VA examinations showed that he has difficulty standing on his left foot and that he must keep transferring weight from one foot to another. Additionally, as to functional impairment, the August 2012 VA examiner stated that physical labor would be difficult. During a March 2017 VA examination, he reported that he is active, stays busy, and avoids ladders. The examiner reported no functional impact and that his left foot disability was mild in severity and that it does not chronically compromise weight bearing. Further, the examiner stated that his left foot disability does not preclude gainful employment in any capacity; the Veteran can sit, walk, go up and down stairs, lift, and carry without difficulty. In January 2019, as to functional impact, the examiner stated that during a flare-up, the pain from the Veteran's left foot disability limits his ability to walk. A February 2020 VA examination associated with the claim file in March 2020 indicated that the Veteran experiences pain in his left foot on active motion, passive motion, and on weightbearing. As to functional impairment, the examiner stated that the Veteran must avoid work environments that require standing or walking over thirty minutes without rest, ladder climbing, exposure to unprotected heights, or walking on rough terrain to avoid aggravation of foot pain. Further, when experiencing flare-ups of pain, the Veteran must avoid standing or walking over fifteen minutes to allow flare-ups to resolve. The most recent VA examination was afforded in January 2021. The examiner stated the Veteran's left foot disability is moderate in severity, it chronically compromises weight bearing, and requires arch supports, custom orthotic inserts, or shoe modifications. Additionally, the examiner found evidence of pain on active motion, passive motion, and on weight-bearing. Finally, as to the functional impact, the examiner stated that walking and standing on ladders causes the Veteran pain. In this case, the Board referred the Veteran's TDIU claim to the Director, Compensation Service for extraschedular consideration. In a September 2022 advisory opinion from the Executive Director, Compensation Service, the Director determined that entitlement to extraschedular TDIU was not warranted. Although the report conceded that the Veteran's service-connected conditions cause functional limitations, the report determined the evidence does not show the Veteran is unable to obtain or maintain gainful employment due to his service-connected disabilities. Based on the evidence of record, the Board finds that the effects of the Veteran's service connected crushed foot injury to the left foot precludes him from maintaining substantially gainful employment that is consistent with his education and occupational experience. In this regard, the Veteran worked as a paint inspector in his post-service career. The Veteran's difficulty with standing, ambulation, squatting, walking, using stairs and pain with weight bearing would impact his ability to work in this field, or in any similar profession. VA's duty to maximize benefits requires it to assess all of a claimant's service connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation under 38 U.S.C. § 1114(s). See Buie v. Shinseki, supra; Bradley v. Peake, supra. In Bradley, the Court held that 38 U.S.C. § 1114(s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a "total" rating. When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, special monthly compensation based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230; Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley, 22 Vet. App. at 280). A veteran with a 100 percent schedular rating for a single service-connected disability could also obtain a TDIU on a single separate disability (though not on multiple service-connected disabilities), in order to meet the special monthly compensation requirements (100 percent rating plus 60 percent rating). A TDIU could meet the special monthly compensation requirements by either: a) increasing a single disability rating of less than 60 percent to at least 60 percent (in a case where a separate 100 percent rating is already established), or b) increasing a single disability that is less than 100 percent to a "total" (100 percent) rating, in a case where there is already established a combination of other ratings that meet the separate 60 percent rating requirement for special monthly compensation. See Buie at 249-50. The Veteran is in receipt of a TDIU based on his service connected crushed foot injury to the left foot. However, he does not have separate disabilities rated 60 percent or more disabling. Therefore, special monthly compensation under 38 U.S.C. § 1114(s) for statutory housebound benefits is not warranted. Therefore, based on the foregoing, the Board finds that the Veteran's service connected crushed foot injury to the left foot rendered him unable to secure and follow a substantially gainful occupation and entitlement to a TDIU is warranted for the appeal period. The appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuhn, 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.