Citation Nr: 1329792 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 05-17 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an extra-schedular rating, pursuant to 38 C.F.R. § 3.321, for service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from June 16, 1986, to August 30, 1986, and from November 1987 to February 2004. This matter comes to the Board of Veterans' Appeals (Board) following an appeal of a July 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. (The issues with respect to an extra-schedular rating and for a TDIU were raised by the Board in a September 2011 decision.) In November 2010, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In September 2011, the Board awarded a rating to 30 percent for status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus, right foot, effective the date of the initial grant of service connection, March 1, 2004. It otherwise remanded the issue of an extra-schedular rating for the above issue, as well as remanded the issues of service connection for a disability manifested by chest pains and for a sinus disability, in addition to the claim for a TDIU. In an August 2012 rating, the right lower extremity disability was recharacterized as right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus. In February 2013, the Board denied the Veteran's claim for service connection for disability manifested by chest pains. It remanded the remaining issues on appeal for additional development. Subsequently, in June 2013, the Board granted service connection for sinusitis and again remanded the issues pertaining to an extra-schedular rating and for a TDIU. Following the completion of the development requested, the agency of original jurisdiction (AOJ), continued the denial of the Veteran's claims and issued a supplemental statement of the case (SSOC) in July 2013. The issues have since been returned to the Board for further appellate review. In August 2013, the Veteran submitted additional argument directly to the Board which included copies of information about his prescribed medications. The Veteran waived consideration of this evidence in the first instance by the AOJ. The Board accepts the evidence for inclusion into the record on appeal. FINDINGS OF FACT 1. In an adequate and accurate August 2012 advisory opinion, the Director of Compensation and Pension (C&P) Service determined that there was no evidence that the disability picture presented for the Veteran's service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus was not adequately contemplated by the rating schedule. 2. The Veteran's service-connected disabilities are not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an extra-schedular rating of increased disability for service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 3.321 (2013). 2. The Veteran is not unemployable as a result of his service-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.16, 4.26 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In a January 2012 letter, the agency of original jurisdiction (AOJ) notified the Veteran of information and evidence necessary to substantiate his claims for an extra-schedular rating and for a TDIU. The Veteran was also notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In the January 2012 letter, the Veteran was also informed of the process by which initial disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Therefore, the AOJ has satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). Furthermore, VA has done everything reasonably possible to assist the Veteran with respect to his claims on appeal for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c). The Veteran's VA treatment records are associated with the claims folders as are pertinent records from the Social Security Administration (SSA). Also, all adequately identified and available private medical records have been secured, the Veteran has been provided VA medical examinations, and opinions have been obtained with regard to the Veteran's employability. Additionally, the Veteran's claim for an extra-schedular rating was referred to the Director of C&P for a determination as to entitlement to higher disability rating for service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus on an extra-schedular basis. As is explained in more detail below, the Board finds that the opinion provided by the Director in August 2012 is an adequate basis for deciding the Veteran's claim. Otherwise, the Veteran and his representative have submitted written arguments which have been reviewed. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the issues remaining on appeal. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims on appeal. II. Analysis Extra-schedular rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. When a schedular evaluation is deemed inadequate, the AOJ may refer a claim to the Chief Benefits Director or the Director, C&P Service, for consideration of an extra-schedular rating. Such a referral is warranted where a service-connected disability presents an exceptional or unusual disability picture that renders impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a claimant's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extra-schedular ratings under 38 C.F.R. § 3.321 are awarded on a disability-by-disability basis for each individual disability being considered and not on the combined effect of all of a claimant's service-connected disabilities. See Johnson v. Shinseki, 26 Vet. App. 237 (2013). The Board may not assign an extra-schedular rating in the first instance because the authority for doing so is vested in a particular VA official, the Director of the C&P Service. See 38 C.F.R. § 4.16(b) (2013); Bagwell v. Brown, 9 Vet. App. 337 (1996) (holding that the Board is precluded from assigning an extra-schedular rating in the first instance, but the Board is not precluded from considering whether referral to the VA officials is warranted); see also VAOPGCPREC 6-96 (Aug. 16, 1996). In this case, the Board made a determination in September 2011 that referral for extraschedular consideration of the Veteran's disability rating claim for service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus was needed. In August 2012, the Director of C&P provided an advisory opinion on this matter. The Director correctly noted the rating assigned to the Veteran's disability, as well referenced the Veteran's other service-connected disability ratings (at the time of the advisory opinion, the Veteran was not service connected for sinusitis). The Director then accurately detailed several pieces of medical evidence of record that referenced the impact of the Veteran's service-connected right lower extremity disability on his ability to work. The evidence consisted of reports of VA examinations dated in February 2007, October 2009, February 2012, and March 2012, as well as an addendum opinion from a VA examiner later in March 2012. The Director concluded that no unusual or exceptional disability pattern had been demonstrated that would render application of the regular rating criteria as impractical. Furthermore, the Director added the following, The evidentiary record does not support criteria for entitlement to extra-scheduler evaluation for residuals of exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus of the right foot. The VA examiners indicated that the Veteran was capable of sedentary employment; as such no interference is shown. The C&P advisory opinion was provided based upon a review of the record in August 2012. Since August 2012, additional evidence regarding the Veteran's disability has been added to the record. In particular, VA outpatient treatment records detail the Veteran's symptoms but do not reference his employability. Otherwise, an April 2013 VA peripheral nerves disability benefits questionnaire (DBQ) notes a diagnosis of right tarsal tunnel syndrome and that the disability was manifested by moderate incomplete paralysis of the posterior tibial nerve. The disability was noted to impact the Veteran's ability to work. However, the examiner's explanation for this conclusion reflects only an apparent recitation of the Veteran's reported history without the examiner's own independent assessment. In this regard, the DBQ notes the following, Veteran stopped working as computer system analyst in hospital, but had to quit due to severe pain in the right foot, so he took disability social security and retired. Thus, the April 2013 VA DBQ opinion lacks any probative value. Thereafter, in a July 2013 VA medical opinion, a VA examiner concluded that the Veteran's multiple service-connected disabilities did not preclude the Veteran from his ability to secure and follow a substantially gainful occupation, including sedentary employment. The examiner's opinion was based on a review of the claims folders, to include an interview of the Veteran in April 2013. In light of the above, the Board concludes that the evidence of record since the August 2012 C&P advisory opinion does not warrant remand of the claims folders for the Director of C&P to issue an addendum opinion. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran should be avoided); Soyini v. Derwinski, 1 Vet. App. 540 (1991). As stated above, the Board cannot award an extra-schedular rating in the first instance. Therefore, the Board remanded the Veteran's claim for referral to the Director of C&P to make such a determination. The Director determined that such an award is not warranted. Neither the Veteran nor his representative has asserted that there is any error in the August 2012 advisory opinion. The Veteran is certainly competent to report his symptomatology and personal experiences. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Specifically, the Veteran's contentions that he is unable to work due to his service-connected disabilities, in particular, his service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus are well-documented in the record. This includes reports of VA examination which were reviewed by the Director of C&P Service in conjunction with the issuance of the advisory opinion. The Director did not indicate or suggest that the Veteran's contentions were not credible. Nonetheless, the Director concluded that an extra-schedular rating was not warranted and his opinion was supported by an accurate recitation of the evidence of record. The Board also acknowledges the Veteran's contentions but finds that they do not render the opinion from the Director inadequate or inaccurate, such that a remand is necessary. Moreover, under 38 C.F.R. § 4.1 (2013), generally, the degrees of disability specified 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. The Veteran's symptoms associated with his right lower extremity are pain, burning, and tingling. The Veteran's 30 percent disability award for service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus under 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2013), reflects compensation for pronounced unilateral pes planus (flat foot). Also, the clinical findings noted in the April 2012 VA peripheral nerves DBQ reflect moderate impairment. The Veteran's 30 percent disability award under 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2013), reflects compensation for serious impairment of the foot. Under 38 C.F.R. § 4.124a, Diagnostic Code 8525 (2013), for impairment of the posterior tibial nerve, a 30 percent evaluation would be warranted for complete paralysis of the posterior tibial nerve, which is not shown. Additionally, the Veteran's 30 percent rating for service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus, along with 20 percent for a residual scar contemplates significant impairment of the right lower leg. For example, a 40 percent evaluation would be warranted for loss of use of the foot or for amputation at a lower level (below middle thirds). See 38 C.F.R. § 4.71a, Diagnostic Codes 5165, 5166, and 5167 (2013). The Veteran does not meet or approximate that level of impairment based on the evidence of record. As the Board may not make a determination of entitlement to an extra-schedular rating in the first instance and the Director of C&P Service has provided an adequate and comprehensive advisory opinion, the preponderance of the evidence is against the claim for an extra-schedular rating. Therefore, the benefit-of-the-doubt doctrine is inapplicable and the claim must be denied. 38 U.S.C.A. § 5107(b). Individual Unemployability (TDIU) TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran has been granted service connection for multiple disabilities. He is service connected for: right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus, evaluated as 30 percent disabling; degenerative joint disease at C4-5 with cervical spondylosis, evaluated as 20 percent disabling; scar of the medial aspect of the right ankle/top aspect of right foot, evaluated as 20 percent disabling; chondromalacia patella of the left knee, evaluated as 10 percent disabling; chondromalacia patella of the right knee, evaluated as 10 percent disabling; chronic low back strain, evaluated as 10 percent disabling; sinusitis, evaluated as 10 percent disabling; tinea pedis and pseudofolliculitis barbae, evaluated as 10 percent disabling; as well as noncompensable service-connected disabilities of pes planus of the left foot, allergic rhinitis, hypertension, and G-6-PD Deficiency. The Veteran's combined evaluation is 80 percent. Although the Veteran is not service connected for a single disability ratable at 40 percent or more, the minimum rating requirements of 38 C.F.R. § 4.16(a) are nonetheless met. This is so because the regulation allows for multiple disabilities to be considered as one disability in certain circumstances. The regulation provides that for the purpose of one 60 percent disability or one 40 percent disability in combination, the following disability scenarios, among other scenarios, will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; or (2) disabilities effecting a single body system such as orthopedic, cardiovascular-renal, digestive, etc. 38 C.F.R. § 4.16(a). In this case, the Veteran's service-connected orthopedic disabilities encompassing the cervical spine (20 percent), lumbar spine (10 percent), left knee (10 percent), and right knee (10 percent) are consistent with the second scenario, above. When the four orthopedic disability ratings are combined (including the bilateral factor of 38 C.F.R. § 4.26), the resulting rating is 40 percent. Thus, the minimum rating requirements of § 4.16(a) are met by use of the second scenario. The Veteran is deemed to have a single 40 percent disability, and his combined evaluation for all his service-connected disabilities is 80 percent. The Board notes that entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). Age, however, may not be a factor in evaluating service-connected disability or unemployability. See 38 C.F.R. § 4.19 (2012). The Board also notes that to warrant an award of a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A high disability rating, itself, is recognition that industrial capabilities are impaired. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Likewise, 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. § 4.1. The mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he or she is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. A claim for a TDIU is based on an acknowledgment that, even though a rating less than 100 percent under the rating schedule may be correct, objectively, there are subjective factors that may permit assigning a 100 percent rating to a particular veteran under particular facts, notwithstanding the putative correctiveness of the objective rating. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). As noted in his hearing testimony and documented in reports of VA examinations, the Veteran has claimed that his service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus limits his ability to stand and/or walk secondary to pain. Also, that pain associated with his service-connected knee and spinal disabilities, in combination with his service-connected right lower extremity, precludes substantial gainful employment. In the report of October 2009 VA examination, the Veteran indicated that he had resigned from his job secondary to pain in his feet from standing and walking. In his application for entitlement to a TDIU (VA Form 21-8940), the Veteran reported resigning from his job in March 2009 and that his occupation during that year was as a computer systems analyst. It was also noted that the Veteran had three years of college. In this regard, it appears the Veteran's reference to college pertains to training he received at DeVry University. He reported completing a semester of course work (identified as communication computer system controller) during his active service in 2002, and that following service he attended DeVry from January 2005 to June 2006 during which he reportedly received additional training in computer system technology. A review of the claims folders reflects the Veteran's use of medications as early as September 2001 to treat right foot pain. Furthermore, to avoid drowsiness due to "anti-convulsant" medications he was using for neuropathic right foot pain, the Veteran was reportedly not taking the maximum dose. A May 2004 VA treatment note reflects the Veteran's report of chronic right foot pain. The examiner noted that the Veteran was able to ambulate fairly normally in the office at the time of evaluation. Otherwise, in a report of May 2004 VA examination, the Veteran was noted to have an abnormal gait. Additional VA treatment notes dated in March 2005 and February 2006 reflect the Veteran's report that standing exacerbated his right foot pain and that he experienced chronic burning and tingling in his right foot. In a report of February 2007 VA examination, the examiner commented that the Veteran was using Hydrocodone. The examiner also commented that on examination of the Veteran's right foot there was "global exaggerated tenderness to palpation of the entire foot and Achilles tendon." Furthermore, in evaluating the right foot for sensation, motor strength and range of motion, the examiner commented that there was "much feigned trembling" of the lower leg and foot. Reports of May 2008 and October 2008 VA examinations reflect the Veteran as working full time, that he was assigned different duties at work, and, per the Veteran, his disabilities resulted in significant occupational effects as pain precluded him from lifting objects. Thereafter, in a December 2008 VA treatment record the Veteran was noted to suffer from mild foot and back pain. In a report of October 2009 VA examination, the examiner noted that the Veteran was no longer working as a computer systems analyst because he could not do the job secondary to pain, problems lifting, and decreased strength. In an additional VA examination, also undertaken in October 2009, the Veteran reported that he had resigned from his job because of problems being on his feet and walking around. The Veteran's VA Form 21-8940 reflects that at the time of his resignation, the Veteran was working full time for Lane Regional Medical Center and his monthly gross salary was $3,945.00. In a June 2010 VA treatment record, a clinician noted the Veteran's report of extremely bad foot pain. The clinician commented that the Veteran suffered from gout (a nonservice-connected disability) and that this could be the cause of the Veteran's pain. Evidence of VA diagnostic studies reflect an April 2010 MRI (magnetic resonance imaging) of the cervical spine which revealed chronic degenerative changes at C4-5 and C5-6 and focal bulge contacting the right ventral cord. There was also minimal spondylosis and broad-based bulging at C5-6. An April 2010 MRI of the lumbar spine was normal. Regarding the Veteran's knees, an MRI in May 2011 revealed a left knee meniscus tear, right knee meniscus degeneration, bilateral chondromalacia patella, and right knee patellar tendonitis. In a report of February 2011 orthopedic examination associated with the Veteran's claim for Social Security Administration (SSA) benefits, the physician reported that the Veteran had some minimal degenerative changes in his knees and that he might require arthroscopic surgery on the left knee. Also that the Veteran had some minimal degenerative changes in his right foot and some degenerative changes in his neck and lower back. The physician opined that from an orthopedic standpoint, the Veteran could return to gainful employment. In particular, the Veteran would need to return to work where he did not have to lift more than 30 pounds or more than 15 pounds on a regular basis. Furthermore, the Veteran's work-related activities should only involve occasional bending, stooping, crawling, or climbing. Otherwise, the examiner commented that the Veteran's main problem was psychological, and that he could return to work as a computer analyst. In a report of July 2011 psychiatric examination, also associated with the Veteran's claim for SSA disability benefits, the Veteran reported that he was unable to work due to chronic pain, limited mobility, and drowsiness secondary to his medications. In particular, the examiner commented that the Veteran's ability to sustain effort and persist at a normal pace over the course of a routine 40-hour work week was moderately impaired. Records associated with the Veteran's disability award from the SSA reflect findings that the Veteran was found disabled based on exertional limitations and that a full range of sedentary work was compromised based on the Veteran's limitations. Review of more recent VA outpatient treatment records documents the Veteran's continued complaints of chronic pain in his knees, neck, and right foot. In particular, records document references to gout and inflammatory arthritis to include psoriatic arthritis. The Veteran was noted to received physical therapy and steroid injections for his knees and his neck, and to also use a TENS (transcutaneous electrical nerve stimulation) unit. Diagnoses included internal derangement of the knees and right-sided myofascial neck pain. Range of motion of the Veteran's knees and neck was reported in most instances as full, but not always pain free. In particular, a November 2011 VA mental health treatment record noted the Veteran's report that his pain remained prominent and pronounced daily, particularly in the morning (and further exacerbated by cold weather). He also reported having attending a football game and that his pain increased secondary to having to stand in long lines. The Veteran also commented that several times he had to leave his seat due to worsening pain. With regard to pertinent VA examination reports, in February and March 2012 DBQs, the examiners were asked to comment on whether the Veteran's service-connected disabilities impacted his ability to work. The Board's review of the DBQs reflects that for the most part, the examiners' responses were based on what the Veteran reported. Otherwise, no further explanation or rationale was provided. In particular, the examiner who completed DBQs for the Veteran's right foot and ankle disabilities in February 2012, noted that the Veteran's right foot disability did impact his ability to work. The basis for the examiner's opinion was the following, [The Veteran] stated that he cannot wear regular shoes because it aggrevated [sic] his foot pain. [The Veteran] cannot stand on feet for [more] than 3 minutes because hid [sic] feet begins [sic] to hurt. Also, the examiner who completed DBQs for the Veteran's orthopedic disabilities in March 2012 commented on the Veteran's employability as follows, [The Veteran] is NOT unemployable due to knees/ankle, minor [cervical] spine [problem] and [normal] [lumbar] spine BUT the major [problem] from [military] [service] RSD which he says he still has [problems] and is in the list of items to be [considered] but this needs to be updated/addressed by a NEUROLOGIST not by me[.] A subsequent addendum opinion reported in a March 2012 DBQ, from a different VA examiner than the two examiners noted above, reflects that the Veteran's foot did impact his ability to work. The explanation for the examiner's opinion was the following, [The Veteran] stated that he cannot wear regular shoes because it aggrevated [sic] his foot pain. [The Veteran] cannot stand on feet for [more] than 3 minutes because hid [sic] feet begins [sic] to hurt. My interpretation of these statements would be [the Veteran] is not able to perform work requiring standing or walking for longer than three minutes because of foot pain. Otherwise, as noted above, an April 2013 VA peripheral nerves disability benefits questionnaire (DBQ) notes a diagnosis of right tarsal tunnel syndrome and that the disability was manifested by moderate incomplete paralysis of the posterior tibial nerve. The disability was noted by the examiner to impact the Veteran's ability to work. In this regard, the DBQ notes the following, Veteran stopped working as computer system analyst in hospital, but had to quit due to severe pain in the right foot, so he took disability social security and retired. Otherwise, in an April 2013 examination report and a July 2013 addendum, a VA examiner provided a medical opinion regarding the Veteran's employability. The April 2013 examination conclusion along with the July 2013 addendum opinion note the examiner's report that besides his service-connected disabilities the Veteran also suffered from sleep apnea and mental health problems. Also, it was noted that a claims folders review had been conducted to include the Veteran's electronic VA treatment records. The examiner commented in the July 2013 opinion that when he had seen the Veteran in April 2013, the Veteran's gait was waddling but stable and that he used a cane primarily for balance. Otherwise, the Veteran sat in an office chair during the examination without complaining of discomfort. The examiner also noted, in particular, the following from his observations of the Veteran during the April 2013 examination, [The Veteran] nasal passages/sinuses were asymptomatic. . . [The Veteran] turned his neck well spontaneously without complaining of pain. . . [The Veteran] was alert and oriented. His mental status was factually correct. . . [The Veteran] has no evidence of hypertensive end-organ damage, including heart attack, stroke, or kidney failure. . . [The Veteran] wore regular shoes to the exam. . . [The Veteran] has two years of college and two years of computer training. . . The only medication that [the Veteran] was taking that can cause drowsiness is his hydrocodone. However, he was alert and cooperative on the exam, and he was not sleepy or drowsy. The examiner concluded that although the Veteran had several service-connected disabilities, he was able to sit, stand, walk, use all extremities, turn his neck without discomfort, and give a credible history. He opined, both in April 2013 and July 2013, that as a result of orthopedic problems the Veteran should avoid work requiring prolonged physical exertion, such as prolonged walking, standing, climbing, lifting, etc. In both the April 2013 opinion and the July 2013 addendum opinion, the examiner added that the Veteran was able to perform sedentary work activities on a regular basis, and that his medications or their side effects did not interfere with his work ability. The examiner concluded that the Veteran's multiple service-connected disabilities, including the medications and their side effects, did not preclude the Veteran from his ability to secure and follow a substantially gainful occupation, including sedentary employment. The Board finds the April 2013 and July 2013 opinions of the VA examiner, to be persuasive and afforded the greatest probative weight. The opinions are based on a review of the Veteran's medical history and reflect objective findings at the time of the examination. The April and July 2013 opinions are supported by the VA examiner who completed DBQs in March 2012 and concluded that the Veteran's orthopedic disabilities did not preclude gainful employment. The April and July 2013 opinions are also supported by the physician in February 2011 (SSA medical evaluation) who determined that from an orthopedic standpoint, the Veteran could return to gainful employment as a computer analyst. The Board has considered the Veteran's statements and testimony regarding his service-connected disabilities, in particular his orthopedic disabilities to include the right lower extremity, and their effects on his ability to be gainfully employed. Jandreau, supra. The Veteran's primary contentions regarding an inability to work related to his orthopedic disability to include the right lower extremity. As noted above, the VA examiner reported in February 2007 that on examination of the Veteran's right foot there was "global exaggerated tenderness to palpation of the entire foot and Achilles tendon." Also, in evaluating the right foot for sensation, motor strength, and range of motion there was "much feigned trembling" of the lower leg and foot. The physician who conducted the Veteran's SSA orthopedic examination in February 2011 noted that "all [Veteran's] symptoms are exaggerated" with respect to the neck/cervical spine. Otherwise, the Board finds as inconsistent the Veteran's report that he could not stand (or presumably walk) longer than three minutes due to foot pain but, as noted in the November 2011 VA mental health treatment note, that he attended a football game and was able to stand in long lines notwithstanding that his foot pain ultimately did increase in severity. Additionally, while the Veteran also commented that several times he had to leave his seat at the game due to worsening pain, the VA examiner who provided the medical opinions in April and July 2013 commented that the Veteran sat in an office chair during the examination without complaining of discomfort and also turned his neck well spontaneously without complaining of pain. In light of the above, the Board finds the Veteran's contentions concerning his symptoms and the severity of his service-connected disabilities and their effects on his ability to work, as lacking in credibility based on the evidentiary record before it. As a result, the Board finds the Veteran's statements and testimony to be less probative and persuasive when weighed against the February 2011 SSA orthopedic examination, the March 2012 VA DBQ, and the April and July 2013 VA examinations and opinions. Also, with respect to the July 2013 VA addendum opinion and the examiner's reference to the Veteran's use of Hydrocodone as a possible source of drowsiness, the medical evidence reflects that the Veteran is also prescribed Topiramate (an anti-convulsant medication used to treat neuropathic pain). Literature submitted by the Veteran notes that Topiramate can cause drowsiness. While the examiner failed to mention Topiramate specifically, he was nonetheless aware and considered the fact that the Veteran was taking medication, Hydrocodone, that could result in drowsiness/sleepiness. Still, the examiner found that the Veteran was clear, alert, and orientated and lacked any sign of drowsiness/sleepiness at the time of his evaluation in April 2013. The examiner opined that medications the Veteran was taking, to include their side effects, did not interfere with the Veteran's ability to work. Otherwise, the record also contains opinions from VA examiners who found the Veteran's lower right extremity did impact his ability to work based on its limiting effects with walking and standing. The opinions note the Veteran's reported history on how long he was able to stand and walk without any independent assessment/opinion from the examiners themselves. As noted above, the Board has found the Veteran's report on the severity of his symptoms associated with his orthopedic disabilities, to include his right lower extremity, to lack in credibility. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (The Board may reject a medical opinion that is based upon the veteran's statements only when other facts present in the record contradict the veteran's statements that formed the basis for such opinion). Therefore, when weighing the noted VA opinions, the Board has assigned them less probative weight and does not find them to be as persuasive as the VA examiner's opinions in April and July 2013. With regard to the SSA disability determination finding, while SSA decisions regarding unemployability are generally not controlling for VA purposes, SSA decisions are "pertinent" to VA's determination of a claimant's ability to engage in substantially gainful employment. Martin v. Brown, 4 Vet. App. 136, 140 (1993); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Veteran was found disabled by SSA, in part, based on exertional limitations due to his orthopedic disabilities and the agency also found his history to be credible. As noted above, the Veteran's orthopedic SSA examination identified him as being able to return to gainful employment and the SSA determination did not take into consideration the VA examination findings in 2012 and 2013. The SSA determination also took into account service and nonservice-connected disability; VA may only consider the effect service-connected disability has on the Veteran's employment. Furthermore, notwithstanding the SSA finding that the Veteran was credible, the Board, in its review, finds the Veteran's statements regarding the severity of his orthopedic disabilities, to include the right lower extremity, not to be credible. In reaching the above conclusions, the medical findings and treatment as documented in the Veteran's VA outpatient treatment records, to include diagnostic studies, provide some clinical basis for his complaints. Also, the Veteran was noted to complain of drowsiness secondary to his medication use as early as 2001 and reported the same during his SSA psychological examination. Still, as the Board has discussed, the unfavorable objective medical evidence regarding the severity of the Veteran's symptoms, to include the noted unfavorable opinions, are assigned greater probative weight and persuasiveness when weighed against the Veteran's statements and testimony, which the Board deemed lacking in credibility. The Board also notes that the Veteran's training and educational background has been considered. As noted above, his education consists of a little more than two years of specialty computer training at DeVry University. The Board does not find that the Veteran's lack of additional education or training would be an impediment to his working in a computer-related field or in a position that requires computer-related skills. Therefore, the Board finds the evidence does not show that the Veteran's service-connected disabilities prevent him from securing and maintaining gainful employment. Here, the Board finds that the most persuasive and probative evidence of record reflects that the Veteran's service-connected disabilities, alone, do not render him incapable of performing the mental and physical acts required by employment. The Board does not doubt that the Veteran's service-connected disabilities result in an employment handicap. However, any such interference is contemplated in the schedular rating currently assigned to those disorders, and the evidence of record does not demonstrate that the Veteran's service-connected disabilities, alone, result in unemployability. Likewise, as noted above, whether the Veteran can find employment is immaterial. Thus, the Board finds, based on the record before it, that the preponderance of the evidence is against the Veteran's TDIU claim. The benefit-of-the-doubt rule does not apply, and the issue of entitlement to a TDIU is denied. 38 U.S.C.A §5107. ORDER Entitlement to an extra-schedular evaluation of increased disability for service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus is denied. Entitlement to a TDIU rating is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs