Citation Nr: 1316187 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 07-20 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected bilateral pes planus. 2. Entitlement to service connection for a bilateral leg disability, to include as secondary to service-connected bilateral pes planus. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before a Decision Review Officer (DRO) in January 2006. The Veteran also testified at a Board hearing at the RO in Little Rock, Arkansas in February 2008. These transcripts have been associated with the file. The case was brought before the Board in April 2008 and March 2011, at which time the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal. Most recently the claims were before the Board in November 2012 at which time they were remanded again for development to include obtaining outstanding VA treatment records, requesting outstanding private treatment records, and affording the Veteran new VA examinations. The Veteran's most recent VA treatment records were obtained and associated with the claims file. The Veteran was notified in November 2012 that he could provide additional information pertaining to private treatment but he did not report any additional outstanding treatment records. The Veteran was afforded VA examinations in December 2012 and February 2013 for his lumbar spine and bilateral leg claims. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (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). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that a lumbar spine disability is related to service or was caused or aggravated by service-connected pes planus. 2. Any current bilateral leg disability is not related to the veteran's active service under any theory. 3. The competent evidence of record does not indicate the Veteran meets the schedular threshold for a TDIU and the Director of Compensation and Pension Service has determined he does not meet the extraschedular criteria. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for a bilateral leg disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012) 3. The criteria for an award of TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The notice requirements were met in this case by letters sent to the Veteran in January and March 2006. The January 2006 letter advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The March 2006 letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The January 2006 letter notified the Veteran as to what elements were required to substantiate a claim of secondary service connection. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. The Veteran has not indicated that there are any additional outstanding records to be obtained. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded multiple VA medical examinations, most recently in December 2012 and February 2013. These opinions were rendered by medical professionals following a thorough examination and interview of the appellant and review of the claims file. The examiners obtained an accurate history and listened to the appellant's assertions. The examiners laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection may also be granted for a chronic disease, including arthritis, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Lumbar Spine and Bilateral Leg Disabilities The Veteran contends that he has lumbar spine and bilateral leg disabilities as the result of a motor vehicle accident from service, or in the alternative, as secondary to his service-connected bilateral pes planus. The Veteran's claim will be considered on a direct and secondary basis to accord him every possible consideration. The Veteran was afforded a medical examination at his entrance to service in October 1967. At this examination, no back or leg problems were noted and the Veteran was found to be qualified for enlistment. In an August 1969 record the Veteran reported being in a car accident where the truck flipped over, but did not throw him out. He complained of neck and chest pain. On examination his neck and chest were normal and he was diagnosed with muscle strain. In a February 1970 treatment record the Veteran reported for the past 7 months he had pain in his feet and legs when standing for a long period of time. In June 1970 the Veteran reported leg pain which had existed for the previous 3 weeks. The examiner stated it was non emergent and he was returned to service. There is no follow up for either of these conditions. Although he was treated multiple times before his separation in July 1970, he did not report any back pain, nor was he diagnosed with a lumbar spine or bilateral leg disability. See e.g., October 1969 treatment record for left flank pain and March 1970 treatment record for foot problems. At his separation examination in April 1970 the Veteran himself specifically denied back trouble of any kind, arthritis, or lameness. On examination no spine or leg defects were noted and he was found qualified for separation. This evidence weighs against the Veteran's claims that his conditions are related to service. The first post service reference to treatment for a lumbar spine or leg disability comes from a January 1982 statement from the Veteran's private physician noting that he had treated the Veteran for backaches. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). The evidence weighs against the Veteran's claims for service connection. A March 1982 VA x-ray for the Veteran's lumbar spine was normal. In a February 1985 VA treatment record the Veteran reported chronic lower back pain from an injury in service. He was diagnosed with lower back pain with radiculopathy. In a September 1987 private statement the Veteran reported intermittent low back pain for the previous 8 years. He also reported soreness of the lower back in service, but more foot and leg discomfort for long periods of standing. In an October 1987 VA examination report the Veteran stated he had pain in his back, legs, and feet when standing for long periods of time. He also reported back and leg pain when lifting or walking. He reported injuring his back in service in 1969. He was diagnosed with status post injury of the lower back and legs. At the time of a June 18, 1991 private treatment record the Veteran reported lower back pain that had existed for 1 week. He was diagnosed with lumbar strain. See also June 28, 1991 private treatment record where the Veteran reported he injured his back June 10 at work. In a July 1991 private treatment record the Veteran reported he began experiencing back pain on June 10 after he stumbled at work. His gait was normal, but he was noted to have scoliosis. The physician opined the Veteran had a possible herniated nucleus pulposus with right lumbar radiculopathy, but no neurological deficits present. In an August 1991 private treatment record the Veteran reported the 1991 work injury, but stated he had no previous injuries to his lower back. The Veteran was awarded benefits from the Social Security Administration (SSA) as of June 1991 due to his cervical and lumbar spine disabilities, as well as right leg pain. In a private treatment record from September 1995 the Veteran reported pain in his back and right leg. He reported intermittent symptoms from the 1991 injury which had gotten worse since that time. He was diagnosed with spinal canal stenosis. At a February 1997 VA examination the Veteran reported the 1969 car accident and indicated his lumbar spine and leg pain began subsequent to this. He also reported being diagnosed with a herniated disc in 1991. At a VA examination in November 1997 the Veteran reported that he had injured his back in a car accident in 1969. He reported re-injuring his back in 1991 when he was at work. The examiner provided no opinion on the etiology of the Veteran's lumbar spine disability, but diagnosed the Veteran with degenerative disc disease. In a March 1998 VA treatment record the Veteran reported a history of lower back pain since 1991. X-rays showed degenerative joint disease. In an April 1998 VA treatment record the Veteran reported an 8 year history of lower back pain which began after his injury in 1991. At a November 1998 VA examination the Veteran reported that he injured his back in a car accident in 1991. The examiner found no signs of abnormal weight bearing due to the Veteran's pes planus. The Veteran was noted to be receiving steroid injections for his lumbar spine in June 1999. See also July 1999 VA treatment record noting general joint pain. The Veteran reported bilateral leg pain which was worsened in service when he was in a car accident. In a March 2000 the Veteran's VA physician submitted a statement that his chronic back pain was related in part to his repeated strain over the years in the military and following separation from service. The Veteran was afforded a VA examination in June 2000 for his lumbar spine claim. He reported his pain began in 1969 after the car accident. He also reported that his legs would give out with prolonged standing. The examiner noted that he had reviewed the treatment records and the Veteran only complained of neck and chest pain at the time of the 1969 accident. He noted the first reference to low back pain did not show up until 1982. On examination his feet showed no evidence of abnormal weight bearing. The examiner diagnosed the Veteran with degenerative arthritis and degenerative disc disease of the lumbar spine with a herniated disc. In a November 2000 treatment record the Veteran was diagnosed with spinal stenosis. A March 2001 private treatment record showed bilateral leg pain, most likely secondary to foraminal stenosis and a May 2001 private treatment record noted L5 radiculopathy. In a September 2002 VA examination for flatfeet the Veteran reported that following his 1969 car accident he began to have pain in his right leg and numbness in his bilateral feet. He also reported pain in the low back. The examiner did not provide a link between the Veteran's back and leg pain and his flatfeet. In a March 2004 VA examination for flatfeet the Veteran reported pain in his bilateral legs. An April 2004 addendum opinion the examiner stated the Veteran's posture and gait were normal. The Veteran reported chronic lower back pain in a February 2007 VA treatment record. He reported injuring his back in 1969 but not getting treatment for it until 1993. At his February 2008 Board hearing the Veteran testified that he had to use a cane because his legs kept giving out. He also testified about the August 1969 car accident in service and that he was reassigned following this accident. He reported that he had the same symptoms for his back and legs following separation from service. He testified that his 1991 work injury was actually a re-injury of his original 1969 back injury. At his December 2012 VA examination the Veteran reported that he was injured in a car accident in 1969. He reported that a week after the accident his legs began bothering him and he could not stand patrol at the gate. He denied pain in his back at this time. He reported a 1 month following his accident he could not walk. He reported the pain in his back began in 1989 and he was re-injured at his work accident in 1991 (presumably misstated as 1990). The Veteran was afforded a VA examination in December 2012. The examiner reviewed the claims file and examined the Veteran. She ultimately opined it was less likely than not that the Veteran's lumbar spine disability was related to service, to include the 1969 car accident. The examiner's rationale was that at the time of the accident the Veteran did not complain of back pain and his examination was negative. Also at his separation examination he denied back pain and no chronic back disability was diagnosed. The first evidence of lumbar spine pain was in 1982, but at that time the Veteran's lumbar spine was normal. The Veteran was afforded a VA examination in February 2013 for his claims. At this examination he reported his lumbar spine problems began after his work injury in 1991. The examiner opined that it was less likely than not that the Veteran's claimed conditions were related to service. Her rationale was that the Veteran did not report back or leg pain following the 1969 car accident; he only complained of neck and chest pain. There was no diagnosis of a back or leg problem at his separation examination and a March 1982 VA examination found no abnormalities of the Veteran's back and legs. He also had a normal gait following his 1991 injury. As to direct service connection, although the Veteran reported leg pain in service, no diagnosis was given. There are also no complaints or diagnosis of a lumbar spine disability in service. The preponderance of the evidence is against the Veteran's claims for direct service connection. The lack of competent evidence in service and continuously thereafter and the lack of evidence linking the Veteran's current lumbar spine and bilateral leg disabilities to service, to include the negative VA examiner's opinion, weigh against the Veteran's contentions. With respect to secondary service connection, the Veteran contends that his lumbar spine and bilateral leg disabilities were proximately caused or aggravated by his service-connected flatfeet. At a November 1998 VA examination the Veteran reported that his lumbar spine disability was in part caused by his pes planus. In March 2000 the Veteran's VA physician submitted a statement that his chronic back pain was related to his severe flatfeet as well as his repeated strain over the years in the military and following separation from service. The June 2000 VA examiner opined that the Veteran's chronic back pain was not due to pes planus. He noted that the Veteran's pes planus complaints began in-service, although the Veteran did not report lumbar spine pain at the time of the 1969 accident or at any other point in service. In a January 2001 private treatment record the Veteran reported that he stopped working due to his lower back and leg pain. He testified at his DRO hearing in January 2006 that his lumbar spine disability was secondary to his service-connected flatfeet. The February 2013 VA examiner offered an opinion regarding secondary service connection. She opined it was less likely than not that the Veteran's claimed lumbar spine and bilateral leg disabilities were related to his service-connected bilateral pes planus. Her rationale was that the Veteran had a normal gait, the pelvis was level, and there was no evidence of leg length discrepancy. In a March 2013 addendum opinion the examiner stated that the Veteran's lumbar spine and bilateral leg disabilities were not aggravated by his service-connected pes planus. Her rationale was that the Veteran's pes planus did not alter his gait. With regard to the presumption of arthritis, there is no evidence the Veteran had arthritis in his lumbar spine within one year of service. Accordingly, the presumption of service connection does not apply. See 38 C.F.R. §§ 3.307, 3.309. In addition to the absence of documented post-service symptomatology related to lumbar spine or bilateral leg disabilities for almost 12 years, the evidence includes the Veteran's statements and testimony asserting continuity of symptoms with respect to his lumbar spine and bilateral leg disabilities since active duty service. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, an absence of evidence of a disorder may not be considered substantive negative evidence. See Buczynski v. Shinseki, 24 Vet. App. 221 (2011). The exception is "where the silence in regard to a condition can be taken as proof that a doctor did not observe the symptom" or if the fact would have normally been recorded. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Buczynski, supra. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, there is no dispute that the Veteran is competent to report symptoms of pain in his lumbar spine and bilateral legs. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). In such cases, the Board is within its authority to weigh that testimony and to make a credibility determination. Here, the Board finds that the Veteran's reported history of chronic lumbar spine and bilateral leg disabilities since active service, while competent, is nonetheless not credible. Emphasis is placed on the gap between discharge from active duty service, in 1970, and the initial reported symptoms 1982, 12 years after service separation. See Maxson, supra. Emphasis is also placed on the service treatment records noting the Veteran complained of chest and neck pain following the 1969 car accident, but did not report lumbar spine or leg pain. The Veteran was also without back or leg abnormalities at his separation examination. As noted above, the Board cannot make a determination that the lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, supra; Kahana, supra; Buczynski, supra. However, the Board can weigh the Veteran's service treatment records against his contentions that his lumbar spine and bilateral leg disabilities are related to service. Unfortunately, this evidence weighs against the Veteran's claims. Next, the Board notes that the Veteran has been inconsistent in his history of experiencing lumbar spine and bilateral leg pain. In September 1987 the Veteran reported back pain for the previous 8 years, or since 1979. In June 1991 the Veteran reported his back pain began on June 10, when he was injured at work. In a private treatment record from September 1995 the Veteran reported his symptoms had been intermittent since his 1991 injury. However, in a February 1997 treatment record he reported his back and leg pain began in 1969 subsequent to the in-service car accident. See also November 1997 VA treatment record. In March 1998 the Veteran reported his back pain began in 1991. In November 2000 the Veteran stated that his back pain started in 1969 following the car accident. See also September 2002 VA examination report and February 2008 Board hearing transcript. Most recently at his February 2013 VA examination the Veteran reported that his lumbar spine pain began following the 1991 work injury. The Veteran's own reported history of when his claimed disorders began is inconsistent, which undermines the veracity of his statements. Accordingly, the Board finds the Veteran's statements asserting (continuity of symptomatology since service) lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's lumbar spine and bilateral leg disabilities to active duty. The competent evidence also does not relate the claimed disabilities to his service-connected pes planus. The Board has considered the various medical opinions which discuss the etiology of the Veteran's lumbar spine and bilateral leg disabilities. In a March 2000 the Veteran's VA physician submitted a statement that his chronic back pain was related to his severe flatfeet as well as his repeated strain over the years in the military and following separation from service. The examiner offered no rationale for this opinion, or a statement as to why she came to this conclusion and what the repeated strain was in the military, where none was complained of or diagnosed. To the extent that this conclusion is based on the Veteran's own statements regarding back pain, the Board has found these statements to be inconsistent and incredible, especially acknowledging that the Veteran reported on numerous occasions that his back pain did not begin until the 1991 work injury. This leaves the December 2012 and February 2013 opinions. The December 2012 and February 2013 opinions did not relate the claimed conditions to service. The examiner's rationale was that the Veteran did not complain of these symptoms in-service, either at the time of the 1969 accident, or at his separation from service. The examiner also did not relate the Veteran's conditions to his service-connected pes planus. The examiner's rationale was that there was no evidence the pes planus caused an altered gait, which would have caused or aggravated a lumbar spine condition. Therefore, the Board finds the VA examiner's opinion to be of great probative value. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection on a direct, secondary, and presumptive basis and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). TDIU The Veteran contends that he is unable to work due to his service-connected pes planus, lumbar spine, and bilateral leg disabilities. As such, he believes his claim for a TDIU should be granted. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the 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 disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran last worked in 1991 as an HVAC technician. The Veteran did not work until 2002 when he worked for 5 months, but was discharged for poor performance. See May 2007 response from Los Angeles City Assessor. Service connection is in effect for bilateral pes planus, evaluated separately, each as 20 percent disabling, for a combined total rating of 40 percent from July 1, 2005 to February 1, 2009. As of February 1, 2009, the Veteran's pes planus was rated as 30 percent disabling. He has no additional service-connected disabilities and accordingly, his total rating is 30 percent as of February 1, 2009. Throughout the appeal period the Veteran does not meet the schedular criteria of one disability rated as 60 percent of more or multiple disabilities with one rated at least 40 percent disabling, for a total disability rating of 70 percent. As such, TDIU is only available if the Veteran meets the criteria for an extraschedular total rating. An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The case was referred to the Director of Compensation and Pension Service (Director) in August 2012 for an analysis on extraschedular evaluations. The Director determined that a claim for TDIU should be denied under 38 C.F.R. § 4.16(b). The Director noted that the Veteran previously worked full time in December 2002 as a clerk typist. The Director acknowledged the May 2007 VA examination report which stated the Veteran was disabled because of degenerative disease of the lumbar spine and because his foot pain prevented him from standing for more than 10 minutes. The Veteran was also noted to be in receipt of benefits from the SSA due to cervical and lumbar radiculopathy and degenerative joint disease. Ultimately the Director opined that the Veteran was not service-connected for a back condition. He did have pain in his feet and difficulty standing or being on them for long periods of time. The Veteran's service-connected disabilities, acting alone, do not preclude him from maintaining substantial employment in all environments. He has several non-service-connected disabilities that are affecting his employability. The Board has also reviewed the Veteran's statements that he was unable to work because he could not stand for a long time due to his degenerative disc disease and pes planus. See November 2005 VA examination report. A February 2009 statement from the Veteran's private physician stated he was totally and permanently disabled due to chronic back pain. She also noted he had chronic foot pain. The December 2012 VA physician stated that the Veteran's lumbar spine disorder limited his ability to work in that he could not stand or sit for more than 30 minutes and he could not lift. In consideration of the evidence of record, the Board finds that the Veteran's service-connected disability does not preclude him from securing and following a substantially gainful occupation. The evidence of records indicates that while the Veteran's pes planus may limit his ability for employment requiring standing for long periods of time, his pes planus, acting alone, does not prohibit all types of gainful employment. The evidence also shows that additional medical problems, including non-service-connected cervical spine, lumbar spine, and bilateral leg disabilities impact the Veteran's ability to work. However, nonservice-connected disabilities are not for consideration in this analysis. The Board acknowledges the Veteran believes he cannot work due to his pes planus. However, while sympathetic to his concerns, the Board finds the medical findings by the VA examiner and determination from the Director of Compensation and Pension to be more probative. The opinions reflect a clinical understanding of the Veteran's physical limitations specifically due to his pes planus. There is no credible, competent evidence which establishes that the Veteran's service-connected pes planus disability, acting alone, results in his unemployability. The Veteran does not meet the schedular criteria for TDIU as he does not have a single service-connected disability evaluated as at least 60 percent disabling or multiple disabilities combining for a 70 percent disability rating. 38 C.F.R. § 4.16. The AOJ submitted the Veteran's claim for consideration of TDIU on an extraschedular basis and as discussed, the Director determined it was not warranted. In this case the Board concurs with the finding that a TDIU extraschedular rating is not warranted. For the foregoing reasons, the Board finds that the claim for a TDIU must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a bilateral leg disability is denied. Entitlement to a TDIU is denied. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs