Citation Nr: 1313883 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 05-10 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an extraschedular evaluation for service-connected pes planus (flat feet), currently evaluated as 30 percent disabling. 2. Entitlement to a total disability evaluation based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active service from July 1973 to July 1976 and from September 1978 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs Regional Office (RO) in Nashville, Tennessee, continuing the previously assigned disability evaluation of 30 percent. The Board denied the Veteran's claim in August 2007 and the Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In August 2008, the Court granted a partial Joint Motion for Remand and remanded this issue back to the Board. The Board remanded the Veteran's claim in December 2008 for additional evidentiary development, and in September 2009, the Board again denied the Veteran's claim for an increased disability evaluation. The Veteran appealed this denial to the Court. In April 2011, the Court remanded, in part, the Veteran's claim back to the Board. Specifically, the Court remanded the issue of entitlement to an increased disability evaluation on an extraschedular basis. However, the Court affirmed the Board's previous denial of entitlement to an increased disability evaluation on a schedular basis. In November 2011 and September 2012, the Board remanded the Veteran's claims for referral to the VA Director of Compensation and Pension Service for extraschedular consideration. FINDINGS OF FACT 1. Service connection is currently in effect for bilateral flat feet, evaluated at a 30 percent disability rating. 2. In October 2012, the Director of Compensation Service denied an extraschedular rating for the Veteran's service-connected flat feet. 3. The impairment caused by the service-connected flat feet, does not present an exceptional disability picture showing that the available schedular evaluation for the disability is inadequate. The applicable diagnostic code for evaluating the service-connected flat feet reasonably describes the Veteran's disability picture. 4. In February 2012, the Director of Compensation Service denied a TDIU rating based on an extraschedular evaluation. 5. The medical and other evidence of record does not indicate the Veteran's service-connected disability precludes him from securing or following a substantially gainful occupation consistent with his education, training, and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for flat feet on an extraschedular basis pursuant to 38 C.F.R. § 3.321, are not met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2012). 2. The criteria for a total disability evaluation based on individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent September 2003, June 2006, January 2009 and September 2009 that fully addressed all notice elements. The letters provided information as to what evidence was required to substantiate the claim for an increased disability rating for his service-connected flat feet and for a TDIU, and notified him of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the June 2006 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date, meeting the notice requirements set out in Dingess, and the January 2009 letter met the generic requirements remaining under Vazquez-Flores. Although complete notice was not issued prior to the initial RO decision in this matter, the claims were readjudicated, most recently in a March 2013 supplemental statement of the case, after all critical notice was given. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's available service treatment records, post-service reports of VA treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In its November 2011 remand, the Board instructed the RO to refer the Veteran's claims for a higher disability rating for service-connected pes planus and for a TDIU, both on an extrashedular basis, to the Director of Compensation and Pension (C&P) Service. In February 2012, an opinion from the Director of C&P was provided; however, the opinion only addressed whether the Veteran was entitled o an extraschedular evaluation for TDIU. As such, the Board again remanded the case in September 2012, instructing the RO to forward the Veteran's claim for an increased evaluation for service-connected pes planus on an extrashedular basis to the C&P Director. In October 2012, the requested opinion was provided. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Entitlement to extraschedular rating for bilateral pes planus Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 3.321. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating. First, the threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, there must be a determination as to whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the Veteran's service-connected pes planus does not warrant an extraschedular rating. The evidence of record does not support a finding that the symptoms associated with the Veteran's service-connected bilateral pes planus disability along create an exceptional disability picture outside the "governing norms" noted in the regulation. As an initial matter, there is no evidence that the Veteran has had any hospitalizations in connection with his pes planus. With regard to employment, the record does reflect that the Veteran has had ongoing difficulties with employment. However, the Board finds that the evidence of record, taken as a whole, does not support a finding that the Veteran's service-connected pes planus causes marked interference with employment. In June 2001, the Veteran reported that losing a job due to a confrontation with a co-worker. See June 2001 VA social work note. In September 2003, he reported losing another job two weeks prior for insubordination. See September 2003 VA mental health consultation report. In a November 2003 claim for entitlement to service connection for PTSD, the Veteran contended that he had lost a job due to his anger, argumentative flashbacks, and lack of sleep. In a December 2003 statement, the Veteran asserted that he had lost several jobs over the prior 15 years, and was not able to keep a job due to his depression and anger. In October 2005, the Veteran reported he was unemployed, and it was noted that he had been taking Zoloft since a work-related incident in 2003. These statements, made by the Veteran, tend to show that his difficulties with employment are due to a non-service-connected psychiatric disability. While the Veteran reported at his April 2009 VA examination that he had to quit work due to the pain in his feet, this VA examiner found that, based on examination, a review of the claims file and a history of the Veteran, his pes planus, independent of his neuropathy, should not have a significant impact on his employment. The Board notes that an October 2003 VA examiner who conducted an examination of the Veteran's feet remarked that he would benefit from job retraining for sedentary work. However, this statement, merely suggesting that there would be a benefit from such training, does not indicate the level of interference with employment contemplated by the regulation, especially when viewed in connection with the other evidence of record, including the April 2009 VA examiner's opinion and the October 2012 opinion from the Director of C&P. In the October 2012 opinion, the Director of C&P noted that the Veteran had reported symptoms of pain and tenderness, but had normal alignments in his Achilles tendons, and that other symptoms of the feet were due to non-service-connected disability. In finding that an extraschedular rating was not warranted for the Veteran's service-connected pes planus, he found that there was no evidence in the Veteran's VA medical records that the Veteran's pes planus is the sole cause of the Veteran's employment difficulties. Thus, the Board finds that the evidence of record does not support a finding that the Veteran's service-connected pes planus causes an exceptional disability picture. Significantly, the Board also notes that the symptoms associated with the Veteran's pes planus disability are adequately contemplated in the rating criteria under Diagnostic Code 5276. Throughout the appeals period, the Veteran has reported pain on manipulation and palpation, weakness, stiffness, and calluses. Achilles arches were tender to palpation but essentially normal in alignment. Shoe inserts helped moderately and the Veteran was found to have moderate flat feet. The Veteran is currently rated at a 30 percent disability rating under Diagnostic Code 5276, contemplating marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities. The medical and lay evidence of record fails to show anything unique or unusual about the Veteran's pes planus disability that would render the schedular criteria inadequate. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the clam or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As the evidence fails to show that the Veteran's pes planus causes an exceptional or unusual disability picture, an extrashedular rating is not warranted, and the benefit of the doubt doctrine is not for application. Entitlement to a TDIU rating The Veteran seeks a total disability rating based on individual unemployability due to his service-connected disabilities. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total 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. 38 C.F.R. §§ 3.340 , 3.341, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. The term 'unemployability,' as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a 'living wage '). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. In Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court noted, 'For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which takes the claimant's case outside the norm of such Veteran. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.' When all the evidence is assembled, VA is responsible for determining whether the evidence supports the clam or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is service-connected for bilateral flat feet at a 30 percent disability rating. As such, he does not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a). It appears that the Veteran has been employed full time for at least part of the appeals period; however, his employment history is somewhat unclear from the record. As noted above, the Veteran has reported on several occasions that he has been employed and subsequently lost employment. The Veteran was sent a Form 21-8940 in September 2009; however, he did not complete and return the form. However, to the extent that the record shows that the Veteran has been unemployed, the evidence of record does not support a finding that the Veteran's service-connected disability, alone, renders him unable to secure or follow gainful employment. The Veteran has reported on numerous occasions that he has had difficulty with maintaining employment due to his anger problems and issues getting along with people. While he reported that he had to quit his job in April 2009 due to pain in his feet, the VA examiner noted that his service-connected pes planus should not interfere with his employment. The record reflects that the Veteran has been diagnosed with other, non-service-connected disorders affecting his feet, including peripheral neuropathy. The Director of C&P issued an opinion in February 2012 as to whether the Veteran's service-connected pes planus has rendered him unable to secure or follow substantially gainful employment. The examiner noted that the October 2003 examiner found that the Veteran would benefit from training for sedentary employment, and that the April 2009 examiner noted that the Veteran's service-connected disability should not have a significant impact on his employment. The Director found that the record contained evidence showing that the Veteran is capable of performing sedentary work. He noted that the record contained two medical opinions which reflect that the Veteran was not precluded from performing the requirements of sedentary employment. Thus, the evidence of record is against a finding that the Veteran's service-connected flat feet render him unable to secure or maintain gainful employment. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Gilbert. ORDER An extraschedular evaluation for service-connected pes planus (flat feet), currently evaluated as 30 percent disabling, is denied. TDIU is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs