Citation Nr: 1751546 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 09-28 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a back disability, to include as secondary to service-connected chondromalacia of the left knee. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Army from September 1975 to September 1979. He is the recipient of the Good Conduct Medal. He had a subsequent period of active duty for training (ACDUTRA) from October 1984 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded this matter for the second time in December 2016. Supplemental Statements of the Case (SSOC) were issued in April and June 2017. The Board observes that, although service connection for a back disability was denied in a final, unappealed August 2001 rating decision, such previously denied claim must be reconsidered, rather than reopened, because service treatment records had not been considered at the time of the August 2001 denial. See 38 C.F.R. § 3.156(c). On a Statement in Support of Claim received in April 2017, the appellant appeared to raise the issues of entitlement to increased evaluations for his service-connected disabilities. The appellant and his representative are advised that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. Should the appellant wish to file claims of entitlement to increased evaluations, he and his representative should file the claims with the RO on the proper form. FINDINGS OF FACT 1. A chronic back disability was not present during active service, manifest to a compensable degree within one year of separation from active duty, and the most probative evidence establishes that the current back disability is not causally related to active service or any incident therein, nor is it causally related to or aggravated by a service-connected disability. 2. The appellant's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 5107 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for a total rating based on individual unemployability due to service-connected disability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Neither the appellant nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Applicable Law A. Standard of Proof The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA 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. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. B. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the "active military, naval, or air service." 38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term "active military, naval, or air service" means active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Service connection for certain chronic diseases, including arthritis and an organic disease of the nervous system, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, evidentiary presumptions, including the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service, do not extend to those who claim service connection based on a period of active duty for training or inactive duty training. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); McManaway v. West, 13 Vet. App. 60, 67 (1999) vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001) (noting that "if a claim relates to period of active duty for training, a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim"). C. TDIU VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following 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, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. 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 totally disabled. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain 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. Van Hoose, 4 Vet. App. at 363. III. Analysis A. Entitlement to service connection for a back disability The appellant has contended that he injured his back during active service in 1979 when a howitzer or five-ton trailer, which moved the howitzer, hit him and knocked him to the ground. More recently, he has also contended that he was thrown 50 feet into the air when this occurred. He has also contended that he developed a back disability due to his service-connected left knee disability. The appellant's service treatment records show that in February 1976, he complained of right flank side pain when running. The assessment was muscle strain. The service treatment records include a Statement of Medical Examination and Duty Status which shows that in April 1979, the appellant sustained injury to the right side of his waist and mild soft tissue trauma to the right arm after he "was alledgedly [sic] hit by a 5 ton truck in the field." More specifically, the appellant reported that he had been involved in uncoupling a Howitzer from a 5 ton prime mover when the right trail of the Howitzer swung open, knocking him to the ground and causing the noted injury. The examining physician indicated that the injury was not likely to result in a claim for future medical care. An April 1979 clinical note states that the appellant was hit by a five-ton trailer. He complained of pain in his right rib cage, right hip and right lower quadrant. X-rays were negative. In May 1979, the appellant sought treatment for right side pain. He reported a history of trauma to the same area two weeks prior. Examination showed slight flank tenderness. The examiner noted "normal exam." The assessment was contusion. At the appellant's August 1979 separation examination, he reported being hit by a "155 mm" on his right side one and a half months previously. On clinical evaluation, his spine and musculoskeletal system were examined and determined to be normal. In pertinent part, the post-service record on appeal shows that in November 1979, the appellant submitted an original application for VA compensation benefits, seeking service connection for residuals of an injury to his right side. His application is silent for any mention of a back disability, as is medical evidence assembled in connection with the claim. That evidence includes VA clinical records showing that in November 1979, the appellant sought treatment for pain in his right rib cage which he attributed to the in-service injury. No complaints or findings of a back injury were recorded. Examination and X-ray studies were negative. The assessment was no evidence of disease or injury found. The appellant was afforded a VA examination in January 1980. He reported that he injured his right side when hit and bruised by a howitzer while riding in a truck in August 1979. He reported pain in the right flank on occasion. Examination revealed slight right flank tenderness in the area just below the ribs. Otherwise, the right flank appeared normal. Examination was negative otherwise. A March 1982 Report of Medical Examination found the appellant's spine to be normal. The appellant reported that there had been no significant change to his health since his last physical examination. In a March 1982 Report of Medical History, the appellant denied having, or ever having had, recurrent back pain. Service treatment records corresponding to the appellant's period of ACDUTRA show that in November 1984, he was hospitalized in connection with his complaints of left knee swelling. He also complained of urethral discharge. No complaints pertaining to the back were recorded and physical examination was unremarkable but for left knee swelling and warmth. The assessment was septic arthritis of the left knee. In December 1984, the appellant returned to the clinic for follow up of presumed septic arthritis. Examination showed left knee effusion and an enlarged and tender prostate with "gnawing" lower back pain. Left knee aspirate and prostatic secretions were negative for bacteria. Prostate exam reproduced the low back pain symptoms. The assessment was inflammatory response to left knee. Service treatment records are otherwise negative for back-related complaints or observations. In July 2000, the appellant submitted a claim of service connection for rheumatoid arthritis. In connection with the claim, the RO received VA and private clinical records which include a July 2000 VA clinical record showing that the appellant sought treatment for chronic pain in the knees. At that time, examination of the spine was negative. The assessment was degenerative joint disease of the knees and hands. An August 2000 disability determination shows that the appellant claimed to have "septic arthritis" with pain and swelling in his knees, back, toes, hands, and fingers. He also reported a lot of pain in his back. The impression was multiple arthritis, probably degenerative joint disease. Private clinical records show that in December 2001, the appellant reported that he had degenerative joint disease of the lumbar spine because a truck ran over him while he was on active duty. In June 2002, the appellant reported to Dr. F.D.M. that he was knocked to the ground in May 1979 and has had problems with right arm and back pain since then. An August 2002 statement from Dr. F.D.M. notes that the appellant was injured while on active duty in 1979 when he was knocked down onto the ground and has had knee and back problems since. In his August 2008 Notice of Disagreement, the appellant reported that he was hit by a five-ton trailer and hospitalized for a few weeks. He stated that he was knocked 50 feet into the air and landed hard, which injured his back and left knee. However, no bones were broken. He stated that this caused an injury to his back. A January 2007 clinical note states that the appellant reported that his low back pain had begun four to five years prior. He reported a significant injury in the mid-1980s when he was run over by a truck, which required two months of hospitalization. He reported no broken bones but had severe soft tissue injury and pain. He recovered and returned to duty. He developed musculoskeletal pain over the years, particularly in his knees and low back. The appellant was afforded a VA examination in July 2008. The claims file was reviewed. The examination was negative for any tenderness, swelling, or limited motion. The appellant reported that back pain began in 2004. He reported that he had worked as a textile worker and had last been employed in 1993. He stopped working because his hands and feet became swollen, which limited lifting, pulling, and pushing. September 2007 MRI results were noted to be normal. The examiner opined that it was less likely than not that a back disability caused or aggravated by a left knee disability, to include chondromalacia or septic arthritis because there was no physiological basis identified upon which to assert that a lumbar strain, if such was even present, was caused or aggravated by a left knee disability. The appellant was afforded a VA examination in March 2011. The claims file was reviewed. He reported that he has had back pain since 2005. He denied hospitalization or surgeries for his back pain. Lumbar spine X-rays were within normal limits. The examiner observed that the only notation in the service treatment records regarding low back pain was a December 1984 notation of "gnawing" low back pain. No diagnosis was rendered. A January 2007 clinical note shows a history of severe soft tissue injury during active service, but the appellant recovered. August 2007 MRIs of the lumbar spine were normal. The appellant was diagnosed with intervertebral disc syndrome (IVDS). The examiner opined that it was less likely than not that the appellant's low back disability was etiologically related to the April 1979 incident when he was hit in the right waist and right arm by a howitzer trailer because (1) the emergency room record showed moderate right forearm pain, mild right ribcage pain, and mild right knee pain, and such records were negative for low back complaints; (2) the appellant told VA physicians that his back pain began five years prior; and (3) records were negative for injury or treatment regarding the lumbar spine in service. A VA medical opinion was obtained in January 2015. The claims file was reviewed. The examiner opined that it was less likely than not that any currently diagnosed back disability had its onset in service the appellant reported that his current back problems began in the early 2000s, decades after separation. It was less likely than not that any currently diagnosed back disability was caused or aggravated by a left knee disability because, at the onset of his lumbar pain in 2001, there was no antalgic gait. Weight-bearing problems could cause problems in the back due to antalgic gait, secondary to shifting of the weight axis. It was also noted that MRIs were normal. In a statement received in July 2015, the appellant stated that, although complaints regarding his lumbar spine were not voiced until 2001, he had experienced pain, walked with a limp, and wore a back brace since approximately 1993. He stated that, due to his service-connected left knee disability, he walked with an altered gait and limp, which caused him to twist his back painfully. The appellant was afforded a contracted examination for his back in March 2017. The claims file was reviewed. He was diagnosed with lumbosacral strain. The appellant reported that he was hit in the back by a "spade." There was no fracture; however, he reported a bruise. Surgeries were denied. He separated from service in 1987 and was seen 20 years later by the Fayetteville, North Carolina, VA for back pain which started four to five years prior, in the early 2000s. November 2001 lumbar X-rays were normal. Imaging studies were negative for arthritis or degenerative changes, including 2011 X-rays and 2014 MRIs. The examiner opined that it was less likely than not that any subjective symptoms currently experienced by the appellant were due to military service. The examiner noted that there was no continuity of symptomatology and a March 1982 physical examination report showed a normal spinal examination. Rather, it was more likely that any previous back complaints had resolved on their own. The examiner also opined that it was less likely than not that the appellant's service-connected left knee chondromalacia caused or aggravated a back disability. The examiner noted that the appellant had consistently normal back findings, including a completely normal 2014 MRI. It was only after this 2014 MRI that any degenerative changes were observed, making them more likely than not part of the normal course of aging and thus not due to any knee disorders. The examiner considered the appellant's reports of back pain following being knocked to the ground by a five-ton howitzer mover and the December 1984 report of "gnawing" low back pain. However, the appellant reported that his current low back pain began in the early 2000s; and imaging studies in 2011 and 2014 were normal. Initially, the Board notes that there is no evidence, nor does the appellant contend, that the appellant developed arthritis which manifested itself to a degree of 10 percent or more within one year from the date of separation from active duty. Rather, X-rays were negative as recently as 2011 and MRIs as recently as 2014. Thus, presumptive service connection is not for application. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). The Board finds that the preponderance of the evidence is against a back disability being caused by or incurred during active service, or caused or aggravated by a service-connected left knee disability. As set forth above, the appellant's service treatment records show that no chronic back disability was present during active duty. Despite the April 1979 Howitzer incident, subsequent active duty treatment records are negative for complaints or abnormalities pertaining to the back. Moreover, at the appellant's August 1979 separation examination, his spine and musculoskeletal system were examined and determined to be normal, indicating that any back injury he sustained resolved without residual disability. This conclusion is strengthened by the normal findings at the November 1979 and January 1980 VA examinations and the March 1982 Report of Medical examination. Notably, in March 1982, the appellant denied having, or ever having had, recurrent back pain. Similarly, the Board has considered the appellant's reports of gnawing lower back pain in December 1984; however, such symptoms were associated with an infection affecting the knee and prostate. No orthopedic abnormalities of the back were noted and service treatment records corresponding to the appellant's period of ACDUTRA are otherwise negative for back-related complaints or abnormalities. Although the evidence establishes that a chronic back disability was not present during the appellant's active service or manifest to a compensable degree within one year of separation from active duty, service connection may nonetheless be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, however, the record weighs against finding that the Veteran's current back disability is causally related to his active service or causally related to or aggravated by a service-connected disability. In that regard, the Board observes that examiners have consistently concluded that there is no relationship between a current back disability and the appellant's active service or his service-connected left knee chondromalacia. The March 2011 VA examiner observed that the emergency room record regarding the April 1979 howitzer incident recorded only right forearm, right ribcage, and right knee pain. Such record was negative for complaints or observations regarding the back. The March 2017 examiner reasoned that, although the appellant reports that he injured his back in 1979, a March 1982 physical examination report noted a normal spinal examination. Further, imaging studies as recently as 2011 for X-rays and 2014 for MRIs showed a normal back. The January 2015 VA examiner observed that there was no antalgic gait observed in 2001, when the appellant himself reported that his back pain began. Thus, it was less likely than not that a back disability was caused or aggravated by a left knee disability, because although weight-bearing problems due to an antalgic gait could cause back problems, the appellant did not exhibit such gait. The Board finds that these medical opinions, taken together, are entitled to great probative weight. The Board notes that there is no competent evidence of record which contradicts these findings. The Board has also considered the fact that service connection is also in effect for a bilateral foot disability but the evidence contains no indication, nor does the appellant contend, that his back disability is causally related to or aggravated by that bilateral foot disability. In reaching this determination, the Board has carefully considered the appellant's contentions. With respect to his January 2007 contention that he was hospitalized for months in the 1980s after being run over by a truck, the Board observes that the more probative contemporaneous clinical evidence of record shows that he was hospitalized for approximately one week due to septic arthritis of the left knee. Such records are negative for any complaints or observations regarding the back. There is no medical evidence of any active duty or ACDUTRA hospitalizations regarding the back. Further, in March 2011, the appellant denied hospitalizations for back problems. The Board has considered the appellant's lay history of symptomatology related to his claimed disorder throughout the appeal period. He reported in January 2007 that his low back pain had begun four to five years prior. In July 2008, he reported that his back pain began in 2004. In July 2015, he reported that he had experienced back pain since 1993. These inconsistencies reduce the probative value of his reported history. Questions of credibility notwithstanding, the appellant is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant, however, is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. The Board finds the VA examination reports to be of greater probative weight than the appellant's lay assertions. Further, questions of credibility notwithstanding, the Board finds that the more contemporaneous medical records are entitled to greater probative weight as to the locations and extent of his injuries than the appellant's remote recollections decades after the fact. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Entitlement to TDIU Prior to February 18, 2016, service connection was in effect for chondromalacia of the left knee, which was rated as 10 percent disabling. Effective February 18, 2016, service connection for bilateral flat foot with bilateral plantar fasciitis was granted and rated as 50 percent disabling. Prior to February 18, 2016, his combined evaluation for compensation was 10 percent; and it has been 60 percent since February 18, 2016. Prior to February 18, 2016, the appellant does not meet the schedular threshold for TDIU. From February 18, 2016, the appellant meets the schedular criteria for TDIU because his service-connected knee and foot disabilities, which affect a single body system (orthopedic) may be treated as one disability and combined for a 60 percent rating. See 38 C.F.R. § 4.16(a)(1). As noted, regardless of whether the appellant meets the schedular criteria for TDIU, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Upon weighing the evidence, the Board finds that the preponderance of the evidence is against the appellant being unemployable due to his service-connected chondromalacia of the left knee prior to February 18, 2016, or his service-connected bilateral flat foot with bilateral plantar fasciitis and chondromalacia of the left knee thereafter. In pertinent part, the record on appeal shows that the Social Security Administration has determined that the appellant was disabled beginning June 15, 2000. The primary diagnosis, however, was rheumatoid arthritis and the secondary diagnosis was essential hypertension. A July 2000 clinical note states that the appellant reported that he performed manual labor in a paper factory. A September 2000 letter from Dr. F.D.M. states that the appellant has medical problems which prevent him from holding gainful employment, including swelling of the extremities from severe, worsening arthritis. A September 2000 clinical note from Dr. F.D.M. states that the appellant had completed the 12th grade but had no transferable skills. During a September 2002 VA examination, the appellant reported that he had not worked for the past two years due to his knees and back. The appellant was afforded a VA examination in August 2004 for his joints. He stated that he has not been able to work for five years and that his daily activities were "quite restricted." The appellant was afforded a VA examination in July 2008. The claims file was reviewed. The examiner observed that, although range of motion testing revealed limitations, the appellant was able to spontaneously flex the left knee to 90 degrees or greater without apparent discomfort. Thus, the measured range of motion for the knee in flexion was highly inconsistent with observed range of motion. The examiner opined that there were significant occupational effects, including limitations on lifting and walking; however, there were no effects on daily activities. The appellant was afforded a VA examination in March 2011. The claims file was reviewed. With regard to limitations regarding his left knee, the appellant reported that he could not stand for long periods of time, run, jump, bend, or stoop. The examiner opined that the appellant's usual occupation was not affected by his left knee disability. The effect on daily activities was that pain of the left knee would hamper and slow activities. In correspondence received in April 2014, the appellant contends that he has received Social Security Disability since 1993 and that Dr. F.D.M. took him out of the workforce due to chondromalacia of the left knee in 1993 because he was unable to stand for long periods. In his Application for Increased Compensation Based on Unemployability, received in April 2014, the appellant reported that he is unable to secure and maintain a substantially gainful occupation solely due to chondromalacia of the left knee, last worked in 1993, and has not worked since. A VA medical opinion was obtained in January 2015. The claims file was reviewed. The examiner opined that it was less likely than not that the appellant's left knee disability rendered him unable to secure or follow a substantially gainful occupation because his knee problems only limit physical employment, not sedentary. The June 2016 contracted examiner opined that the functional impact of the appellant's bilateral foot disability was that he was unable to perform physical activities such as extended walking or standing. It was noted that he had not used any arch supports, built up shoes, or orthotics. No limitations regarding sedentary work were observed. In correspondence received in April 2017, the appellant reported that he is unemployable due to both his service-connected left knee disability and his service-connected bilateral flat feet with bilateral plantar fasciitis. After reviewing the record in its entirety, including that delineated above, the Board finds that the preponderance of the evidence is against the appellant being unable to secure or follow substantially gainful employment due to his service-connected disabilities. First, the Board observes that no VA or contracted examiner has opined that the appellant's service-connected disabilities preclude him from performing sedentary work. Although the Board recognizes that unemployability is a legal determination, the Board finds that such opinions are entitled to great probative weight on the question. The Board has also considered the appellant's receipt of Social Security Disability income and the September 2000 statements from Dr. F.D.M. regarding the appellant's employability, but finds that they are entitled to less probative weight regarding the question of entitlement to TDIU because such are not limited to the effect of the appellant's service-connected disabilities on his employability. Rather, the Social Security Administration took the appellant's nonservice-connected hypertension into consideration and rheumatoid arthritis into account and Dr. F.D.M. also noted arthritis in multiple extremities. The appellant is only service-connected for left knee chondromalacia and bilateral flatfoot with bilateral plantar fasciitis. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran is actually employed or can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the most probative evidence establishes that the appellant is not unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Although his service-connected disabilities impair his ability to engage in manual labor, the record reflects that he is capable of performing sedentary work. While the Board recognizes the limitations the appellant faces due to his service-connected disabilities, these limitations were considered in the disability ratings he receives for those disabilities. Again, the assignment of the schedular ratings is recognition of the functional limitations caused by his disabilities, and those ratings contemplate the severity and overall impact the symptoms have on his life. However, despite these limitations, the Board finds that the most probative evidence shows that the appellant is not unable to secure or maintain substantially gainful employment due solely to his service-connected disabilities. Rather, the Board finds that the appellant was capable of performing the physical and mental acts required for employment. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b); 28 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a back disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs