Citation Nr: 1600503 Decision Date: 01/07/16 Archive Date: 01/21/16 DOCKET NO. 13-01 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to total disability due to individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran had active service from July 1959 to June 1962. This matter comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge in July 2015. A transcript of the hearing is associated with the claims file. This appeal was processed using the Veterans Benefits Management System. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. A review of the Virtual VA paperless claims processing system reveals additional records which are pertinent to the present appeal. Some of the Veteran's VA outpatient treatment records are located in Virtual VA. FINDINGS OF FACT 1. Service connection is in effect for bilateral pes planus evaluated at 30 percent. He has no other service connected disorders. 2. In light of the Veteran's educational and occupational experience, it is less likely than not that his service-connected disability prevents him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for individual employability due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.321, 3.326(a), 3.340, 3.341, 4.1, 4.3, 4.16, 4.18, 4.19, 4.25 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in September 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, how effective dates and disability ratings are assigned. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim and, as warranted by law, affording the Veteran VA examinations in October 2010, April 2012, and November 2013. There is no additional evidence that need be obtained. Merits of the Claim The Veteran asserts that he is unable to obtain and maintain gainful employment as a solely as a result of his service connected flat feet. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. "Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A total disability rating based on individual unemployability may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. Id. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A claim of entitlement to a total disability rating based on individual unemployability presupposes that the rating for the service-connected disabilities is less than 100 percent, and only asks for a total disability rating based on individual unemployability because of "subjective" factors that the "objective" rating does not consider. Vittese v. Brown, 7 Vet. App. 31, 34-35 (1994). Service connection is in effect for only bilateral pes planus, evaluated as 30 percent disabling. The Veteran's overall rating is 30 percent. Given the Veteran's 30 percent rating, he does not meet the scheduler criteria for a total disability rating based on individual unemployability under 38 C.F.R. § 4.16(a). Under 38 C.F.R. § 4.16(b) when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a total disability rating based on individual unemployability set forth in 38 C.F.R. § 4.16(a), such case may be considered for extra-scheduler consideration in accordance with 38 C.F.R. § 3.321. The Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997). In this case, the Board must evaluate the Veteran's statements, VA examinations, service treatment records, employment history and VA outpatient treatment records. The Veteran was first examined by VA for his pes planus in January 1999. There, the examiner noted foot pain, but no functional limitations. The Veteran sought private treatment in October 1999. There, the Veteran noted his condition kept him from working. The examiner noted painful bilateral pes planus and recommended orthotics but did not offer an opinion as to how the appellant's foot disorder caused any functional limitations. A January 2000 Social Security Administration decision noted that the Veteran's standing and walking were limited, but that he was currently performing sedentary volunteer work. At a February 2000 VA examination the Veteran reiterated that he could not work due to his feet. He also stated he could only be on his feet for one to two hours before the pain became severe to the point of requiring rest. The examiner noted pain to palpitation but did not comment on functional loss. During private treatment in June 2000 the examiner stated that the Veteran would be able to sit for greater than two hours continuously in six to eight hours total. He would be able to stand and walk with short distances without aids. He would be able to lift 20 pounds occasionally and 10 pounds frequently. He would have some difficulty with climbing and kneeling but could occasionally do a partial squat. He would be able to do some repetitive foot use. An October 2002 VA examination did not comment on occupational limitations, but noted functional limitation which was moderately severe on the left foot and moderate on the right. The Veteran's January 2004 VA examination noted foot pain but limitations were only noted in relation to the Veteran's non-service connected knee and back disabilities. The Veteran was afforded a VA contract examination in October 2010. There, the Veteran reported similar symptoms and history. The examiner noted the Veteran's symptoms and diagnosed bilateral pes planus. The examiner opined that there was no effect on the Veteran's usual occupation or daily activities from the disability. A private record from January 2012 showed the activities of daily life were affected and the Veteran required periods of rest. The clinician stated, however, that the Veteran did not need a job that permits shifting positions at will, and did not need unscheduled breaks during a regular 8 hour workday. In January 2012, the Veteran completed a residual functional capacity questionnaire for his private treatment. There, the examiner noted the Veteran could sit for 60 minutes at a time or stand for 5 minutes. The examiner also stated that the Veteran could stand or walk less than two hours in an 8-hour workday, though he could sit for between 4-5. The same examiner gave identical estimations for the Veteran knee and ankle disabilities in May 2012. The Veteran was afforded a VA examination in April 2012. Following the examination the examiner opined that the disorder's functional impact was bilateral foot pain, stiffness, and difficulty with prolonged walking or standing. In October 2012, the Veteran's private clinician filled out a foot Disability-Based Questionnaire. There, he noted functional loss in the form of activity-related limited motion, pain, and swelling. The examiner also noted disturbance of locomotion and interference with standing. The examiner opined that the Veteran was unable to perform any gainful employment. In February 2013, a private examiner opined that the Veteran's rating should go back to 50 percent, but did not comment on functional limitations. The Veteran was afforded a November 2013 VA examination. He stated that he could shop and walk a few miles per day and that this actually helped his symptoms. Without this activity, the Veteran believed his disability would be more painful. The examiner noted that when the Veteran's feet were sore it was more difficult to do the activities of daily life. The Veteran filed a VA Form 21-8940 in February 2010. He reported last working in 1999 and that he had left that job because of his disability. The Veteran stated he could no longer stand, kneel, walk, or carry due to his bilateral pes planus. The Veteran marked that he had completed two years of college but no training since he had stopped working. The Veteran gave testimony in a July 2015 hearing. He testified that he had worked in construction and retired because he could not stand for long periods of time. The Veteran stated that his disability would affect a sedentary job and that his Social Security disability was originally granted for his feet. A review of a June 2000 Social Security determination, however, shows that benefits were granted for degenerative joint disease and diabetes mellitus. Accompanying medical records show that the appellant suffered from degenerative joint disease of the knees. The appellant is not service connected for degenerative joint disease of the knees. The Veteran is competent and credible to describe his symptoms as they are something he has personally experienced and he has consistently described them over the pendency of the claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The evidence shows that the Veteran's pes planus causes him pain and limits his ability to stand or walk for prolonged periods of time. The Veteran has provided VA with one private record from October 2012 which stated he could not perform gainful employment. The remainder of the private and VA records either do not opine on the issue or conclude that the Veteran could perform some form of sedentary work that is consistent with his educational level. By the Veteran's own admission, he walked a few miles per day and performed the activities of daily life, although with difficulty if his feet are sore. Private medical records also show the Veteran could stand or walk a total of less than two hours or sit for 4-5 hours in an 8-hour workday. It is well to also note that the record also shows the Veteran suffers from non-service connection disabilities such as back, knee and ankle disabilities. Here, the private examiner's solitary statement that the Veteran cannot perform gainful employment is not supported by any rationale or the evidence of record. Therefore, it is assigned little probative weight. Similarly, the Veteran's own opinion regarding ability to work has little probative weight. The majority of the evidence, including the October 2010 VA examination and some private treatment, show that the Veteran is not precluded from working in a mostly sedentary environment. Therefore, this evidence is given much probative weight. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Because the medical evidence against entitlement to benefits based on individual unemployability is of greater probative value, the evidence is not in equipoise and the Veteran cannot be given the benefit of the doubt. Because the evidence preponderates against the claim, entitlement to total disability rating based on individual unemployability is denied. The Board has concluded that referral of this claim for extra-scheduler consideration is not warranted. The appellant's disability picture due to his pes planus is not so unusual or exceptional in nature as to warrant referral of her case to the Director or Under Secretary for review for consideration of an extra scheduler evaluation. 38 C.F.R. § 3.321(b)(1). The symptoms experienced by the appellant are specifically contemplated by the rating criteria for pes planus, see 38 C.F.R. § 4.71a, and his symptoms did not require frequent periods of hospitalization. Having reviewed the record with these mandates in mind, the Board finds no basis for referral for consideration of individual unemployability benefits on an extra scheduler basis. Thun. ORDER Entitlement to service connection for individual unemployability is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs