Citation Nr: 21004823 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-58 498A DATE: January 28, 2021 ORDER The issue of an increased rating for cervical spine disability, currently rated as 30 percent disabling, is dismissed. The reduction in rating from 20 percent to 10 percent for right foot superficial peroneal neuritis was improper, and the 20 percent rating is restored effective August 19, 2015. An increased rating for right foot superficial peroneal neuritis, currently rated as 20 percent disabling, is denied. A compensable rating for left foot degenerative joint disease is denied. A 10 percent rating, but no higher, for chronic otitis media is granted. A compensable rating for a right ear injury with perforation of tympanic membrane is denied. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. On October 7, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the issue of an increased rating for degenerative disc disease of the cervical spine is requested. 2. The reduction of the disability rating for the Veteran’s right foot superficial peroneal neuritis from 20 percent to 10 percent from August 19, 2015, was improper because an improvement in ability to function under ordinary conditions of life and work was not shown. 3. The Veteran’s right foot superficial peroneal neuritis is manifested by no more than moderate incomplete paralysis of the external popliteal nerve. 4. The Veteran’s left foot degenerative joint disease constitutes no more than a slight foot disability. 5. The Veteran’s chronic otitis media is manifested by chronic suppurative otitis media. 6. The Veteran’s perforation of the tympanic membrane is manifested by “back and forth pressurization” and occasional pain. 7. The medical and other evidence of record indicates the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of an increased rating for degenerative disc disease of the cervical spine by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. Restoration of the 20 percent disability rating for the Veteran’s right foot superficial peroneal neuritis for the period from August 19, 2015, is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.105(e), 3.159, 3.344, 4.3, 4.7, 4.124a Diagnostic Code 8521. 3. The criteria for a disability evaluation in excess of 20 percent for the Veteran’s service-connected right foot superficial peroneal neuritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a Diagnostic Code 8521. 4. The criteria for a compensable disability evaluation for the Veteran’s service-connected left foot degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a Diagnostic Code 8521. 5. The criteria for a disability evaluation of 10 percent, but no higher, for the Veteran’s service-connected chronic otitis media have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87 Diagnostic Code 6200. 6. The criteria for a compensable disability evaluation for the Veteran’s service-connected right ear injury with perforation of tympanic membrane have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87 Diagnostic Code 6211. 7. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to November 1992 and November 1996 to February 2002. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in January 2019 for further development. The issue of an increased rating for cervical spine disability, currently rated as 30 percent disabling, is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant has withdrawn the issue of entitlement to an increased rating for cervical spine disease, and, hence, there remain no allegations of errors of fact or law for appellate consideration. The Board recognizes that the Veteran withdrew the issue at his October 2020 Board Hearing. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). The Veteran’s withdrawal satisfies all three criteria. At his hearing the Veteran was asked, “Your intent is to withdraw that issue, correct?” His response was an unambiguous “Yes.” Moreover, the Veteran had a full understanding of the consequences of the withdrawal. At a pre-hearing conference, the Veteran, his attorney, and the VLJ thoroughly discussed the withdrawal. Finally, the VLJ made it clear that “I will not be issuing a decision on that [issue].” Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. The reduction in rating from 20 percent to 10 percent for right foot superficial peroneal neuritis was improper, and the 20 percent rating is restored effective August 19, 2015. The Veteran contends that the reduction of his right foot superficial peroneal neuritis from 20 percent to 10 percent from August 19, 2015, was improper as his disability had not improved but had gotten worse. There is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). 38 C.F.R. § 3.105(e) allows for a reduction in the evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines if the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made. Here, the reduction from 20 percent to 10 percent did not result in a reduction in compensation payments as the combined disability rating remained 50 percent. Substantively, the standard to be applied to a rating reduction decision depends on how long the rating has been in effect. When a rating has continued at the same rating level for five years or more, the underlying VA examination supporting a reduction must be at least as complete as the VA examination that formed the basis for the original rating, and there must be a finding that the condition at issue is not likely to return to its previous level. 38 C.F.R. § 3.344(a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction may be made if the evidence indicates that it is reasonably certain that improvement of the underlying injury or condition will be maintained under the “ordinary conditions of life.” 38 C.F.R. § 3.344(a). If, however, a rating level has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable. 38 C.F.R. § 3.344(c). In such cases, reexamination need only show actual improvement for a reduced rating to be appropriate. See id. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Cf. Dofflemyer, at 281-82. Care must be taken, however, to ensure that a change in an examiner’s evaluation reflects an actual change in the Veteran’s condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, it must be determined that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also, Brown v. Brown, 5 Vet. App. 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Moreover, if the VA examination report justifying the rating reduction is inadequate, the reduction cannot be upheld. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran’s responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). By way of procedural history, in a March 2013 rating decision, the Veteran was granted an increased rating for his right superficial peroneal neuritis (claimed as right foot injury and pain) and assigned a 20 percent rating effective August 11, 2012. In the September 2015 rating decision on appeal, the disability rating was reduced to 10 percent, effective August 19, 2015. The 20 percent disability rating for right superficial peroneal neuritis was in effect for less than 5 years. Reductions of evaluations which have been in effect for less than 5 years include an adequate re-examination that discloses improvement in the condition, rather than a “full and complete” examination that establishes that it is “reasonably certain that the improvement will be maintained.” Compare 38 C.F.R. § 3.344(a) with 38 C.F.R. § 3.344(c). There are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Brown v. Brown, 5 Vet. App. 413, 420-421 (1993). Specifically, VA regulation 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, VA regulation 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10. A claim that a rating reduction was improper must be resolved in the Veteran’s favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. The Veteran was afforded VA examination in August 2015. The examiner noted constant, moderate pain in the right lower extremity. He assessed the disability as being manifested by mild incomplete paralysis of the external popliteal nerve. Functional impact was limited to difficulty with prolonged walking and standing. The examiner did not specifically address whether the Veteran’s disability had improved. Moreover, there is no medical history provided by the Veteran (who has denied that there was any improvement). The August 2015 VA examination report is in stark contrast to the January 2013 VA examination report in which the Veteran reported constant, 10/10 pain in the right foot. The January 2013 examiner noted that the Veteran’s disability was manifested by constant, severe pain in the right lower extremity. The examiner also noted moderate paresthesias and/or dysesthesias and moderate numbness. Muscle strength testing revealed 3/5 right ankle plantar flexion and 3/5 right ankle dorsiflexion. The examiner also conducted a sensory examination in which feeling in the right foot/toes was absent to light touch. The Veteran had an antalgic gait due to numbness, tingling, degenerative arthritis/pain in the bilateral feet. The examiner found moderate incomplete paralysis of the external popliteal nerve. The Board notes that the August 2015 VA examiner made no finding that the apparent improvement in the Veteran’s disability reflected an improvement in ability to function under ordinary conditions of life and work. There was no rationale for finding that the Veteran’s subjective symptom of pain (which was deemed severe, 10/10) had improved to moderate. Finally, the Board notes that Veteran’s disability did not, in fact, improve. It required surgery that resulted in a grant of a 100 percent rating effective November 7, 2017. See January 2018 and March 2018 rating decisions. This 100 percent rating was extended until August 1, 2018. See May 2018 rating decision. A September 2019 rating decision increased the rating to 20 percent effective August 9, 2019. Another right foot surgery resulted in another 100 percent rating effective February 14, 2020. See April 2020 rating decision. As noted above, post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. In this case, it is clear that the disability did not demonstrate actual improvement. The Veteran underwent two surgical procedures, and the RO ended up acknowledging that the disability became more severe when it granted a 20 percent rating effective August 9, 2019. The evidence of record is such that the Board finds that the August 2015 VA examination did not show an improvement in ability to function under ordinary conditions of life and work and, as such, the reduction in rating from 20 percent to 10 percent was improper. Restoration of the Veteran’s 20 percent rating for right superficial peroneal neuritis from August 19, 2015 is warranted. Increased Rating Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, however, an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. An increased rating for right foot superficial peroneal neuritis, now rated as 20 percent disabling, is denied. The Veteran’s service-connected right foot superficial peroneal neuritis (recharacterized as radiculopathy of the external popliteal nerve in a September 2019 rating decision) has been rated by the RO under the provisions of Diagnostic Code 8521. Under this regulatory provision, a rating of 10 percent is warranted for slight incomplete paralysis of the nerve. A rating of 20 percent is warranted for moderate incomplete paralysis of the nerve. A rating of 30 percent is warranted for severe incomplete paralysis of the nerve. A rating of 40 percent is warranted for complete paralysis of the nerve. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. A note in the Rating Schedule pertaining to “Diseases of the Peripheral Nerves” provides that the term “incomplete paralysis” indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diagnostic Codes 8510 through 8540. The Veteran’s right foot superficial peroneal neuritis has been rated as 20 percent disabling (apart from those periods when surgery has necessitated a 100 percent rating). In order to warrant an increased rating, the Veteran’s disability would have to be manifested by severe incomplete paralysis of the external popliteal nerve. As noted above, the January 2013 VA examiner assessed moderate incomplete paralysis of the external popliteal nerve. The August 2015 VA examiner assessed mild incomplete paralysis of the external popliteal nerve. The Veteran underwent another VA examination in February 2016. The Veteran reported continuing right foot burning pain that he stated occurs randomly. The examiner stated that the Veteran had no constant pain and that he had mild intermittent pain as well as mild paresthesias and/or dysesthesias. Muscle strength testing was normal. Reflex examination and sensory examinations were normal. The examiner assessed a normal external popliteal nerve, and instead found mild incomplete paralysis of the superficial peroneal nerve. The examiner stated that the disability did not impact the Veteran’s ability to work. The Veteran underwent a VA examination in December 2017. He reported right foot numbness, as well as pain and tingling sensations in the right lower extremity. The examiner stated that the Veteran had constant pain that was mild in the right lower extremity, as well as intermittent pain that was moderate in nature. The Veteran also had mild paresthesias and/or dysesthesias, and mild numbness. Sensory examination was absent for sensation to light touch in the foot/toes. The examiner assessed normal external popliteal nerve, and instead found mild incomplete paralysis of the superficial peroneal nerve. The Veteran underwent a VA examination in November 2018. He stated that his disability had worsened and that his foot is in constant pain. He stated that he was unable to perform normal daily activities. He reported constant and severe pain, severe paresthesias and/or dysesthesias, and moderate numbness. Muscle strength testing revealed 4/5 ankle plantar flexion and 4/5 ankle dorsiflexion. There was decreased sensation in the lower leg/ankle and in the foot/toes. The examiner assessed moderate incomplete paralysis of the deep peroneal nerve. Following the January 2019 Remand, the Veteran underwent a VA examination in August 2019. The examiner assessed moderate incomplete paralysis of the external popliteal nerve. Despite numerous VA examinations, none of the examiners have found that the Veteran’s symptoms constitute severe incomplete paralysis of the external popliteal nerve. The examiners have found that the Veteran’s symptoms constitute no more than moderate incomplete paralysis of the nerve of the right lower extremity. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and a rating in excess of 20 percent for right foot superficial peroneal neuritis must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A compensable rating for left foot degenerative joint disease is denied. The Veteran’s service-connected left foot degenerative joint disease has been rated by the RO under the provisions of Diagnostic Code 5284. Under this regulatory provision, a 10 percent rating is warranted for a moderate disability. A 20 percent rating is warranted for a moderately severe disability. A 30 percent rating is warranted for a severe injury. At his October 2020 Board hearing, the Veteran testified that he is starting to have problems with his left foot. He stated that “every once in a while” he gets a twinge, pain, and burning in his left foot. He stated that it is not a “day-to-day thing.” He reported flare-ups approximately every other week consisting of a “little bit of pain.” He rated the pain at 4 on a scale of 1-10. He denied instability in the left ankle. He appeared to contend that he should get a compensable rating due to functional loss due to pain. The Veteran underwent a VA examination in August 2015. He stated that his foot hurts when he stands, although he did not identify which foot. He did not report any flare-ups or any functional loss or functional impairment. The examiner assessed a mild left foot disability. The disability did not chronically compromise weight bearing, and he did not require arch supports, custom orthotic inserts or shoe modifications. There was no pain on physical examination. There was pain on weight-bearing. There was no pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot is used repeatedly over a period of time. Functional impact (of both feet) was that the Veteran had difficulty with standing and walking. The Veteran underwent another VA examination in February 2016. He reported left foot pain with long walking or standing. The examiner noted that there was no pain on physical examination. The examiner stated that there was no functional loss due to the disability. The examiner also found that there was no weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot was used repeatedly over time. Likewise, the examiner found that the disability did not impact his ability to perform any type of occupational task. The examiner noted a March 2013 x-ray that showed mild, stable first metatarsal phalangeal degenerative joint disease. Treatment reports dated January 2019 to October 2019, and October 2019 to March 2020 fail to reflect any reports regarding the left foot or treatment. As noted above, the Veteran testified that his left foot pain began recently. There is little to indicate any functional loss. There is insufficient evidence to reflect a moderate foot disability. The Veteran argued that he is entitled to a compensable rating for functional loss due to pain. He cited DeLuca v. Brown, 8 Vet. App. 202 (1995) in furtherance of this argument. The Board notes that 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. In this case, the disability is not rated based on limitation of motion. Moreover, there is no medical evidence to show that there is any additional loss of motion of the left foot due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a compensable rating. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a compensable rating for left foot degenerative joint disease must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A 10 percent rating, but not higher, for chronic otitis media is granted. The Veteran’s service-connected chronic otitis media has been rated by the RO under the provisions of Diagnostic Code 6200. Under this regulatory provision, a 10 percent rating is warranted for chronic suppurative otitis media during suppuration, or with aural polyps. The 10 percent rating is the maximum rating under this Code. The RO has denied the claim because it found that a compensable rating is not warranted unless the ear is draining or there are aural polyps. The Board recognizes that the Veteran underwent VA examinations in August 2015, February 2016, and December 2017. At each of these examinations, the right ear appeared normal upon examination (apart from the Veteran’s perforated tympanic membrane, discussed below). None of the examiners found suppuration (drainage) of the right ear. At the February 2016 examination, the Veteran reported that he saw an ENT in 1992 (after his deployment) and he had a pressure equalizing tube placed in his right tympanic membrane. He stated that his right ear disability has gotten more severe since service. He reported that every time the seasons change, he gets a bad ear infection. At his October 2020 Board hearing, the Veteran testified that he did not have aural polyps, but that every time the season changes, he gets ear infections, and that he has constant drainage. He stated that he recently began seeing a new ENT doctor and that took out the tube, but that he is going back to see if he needs another tube in his ear. Regarding suppuration, both the Veteran and his wife testified credibly that his right ear drains clear fluid at random times, and that it smells “nasty.” The Veteran has consistently had a diagnosis of chronic otitis media, and that the only issue is whether the ear drains (is suppurative). The Veteran and his wife provided competent and credible testimony that it does, in fact, drain regularly and at random times. Consequently, a rating of 10 percent is warranted. This is the maximum rating allowable under this Diagnostic Code. A compensable rating for a right ear injury with perforation of tympanic membrane is denied. The Veteran’s service-connected right ear injury with perforation of tympanic membrane has been rated by the RO under the provisions of Diagnostic Code 6211. Under this regulatory provision, a 0 percent rating is warranted for perforation of the tympanic membrane. The 0 percent rating is the maximum rating under this Code. At his October 2020 Board hearing, the Veteran testified that his injury is manifested by “back and forth pressurization” in the ear. He said that “the buffering, the vibration, the—the hammering type that—and it drives me crazy.” He stated that if someone dropped a book or there was some other loud noise, “it would like make my ear jump.” He said that sometimes it is painful and there is nothing he can do about it. He stated that this type of pain lasts approximately five seconds. He also stated that he could hear the ringing in his ear as he was testifying, and that the feeling is different than his tinnitus. As Diagnostic Code 6211 does not provide a basis for granting a compensable rating, the question becomes whether it would be appropriate to rate his symptoms under a different diagnostic code. It would seem that his reported symptoms are most analogous to tinnitus; however, the Veteran testified that his symptoms feel different than tinnitus. Moreover, the Veteran’s tinnitus is already service connected, and he is receiving a 10 percent rating for it. The only other diagnostic code that is potentially applicable is Diagnostic Code 6205 governing Meniere’s symptoms. It allows for a 30 percent rating for hearing loss and vertigo less than once per month, with or without tinnitus. The August 2015 examination reflects hearing impairment, and vertigo 1 to 4 times per month with episodes lasting less than one hour. These findings were not found on the February 2016 VA examination. To the contrary, the Dix Hallpike test for vertigo was normal, with no vertigo or nystagmus during test. No vertigo was noted at the December 2017 VA examination. Vertigo is not noted in the recent treatment records, nor has the Veteran reported any symptoms analogous to vertigo. Consequently, there is no basis upon which to grant a compensable rating for the Veteran’s right ear injury with perforated tympanic membrane. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a compensable rating for a right ear injury with perforated tympanic membrane must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A TDIU is granted. In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 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 Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Consequently, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Veteran’s service-connected disabilities include degenerative disc disease of the cervical spine, evaluated as 30 percent disabling; right upper extremity radiculopathy, evaluated as 30 percent disabling; left upper extremity radiculopathy, evaluated as 20 percent disabling; right lower extremity radiculopathy (right foot superficial peroneal neuritis), evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; painful scar, right foot, evaluated as 10 percent disabling; scar, left upper extremity, evaluated as 10 percent disabling; chronic otitis media, evaluated as 10 percent disabling; hearing loss, right ear, evaluated as 0 percent disabling; right ear injury with tympanic membrane, evaluated as 0 percent disabling; degenerative joint disease of the left foot, evaluated as 0 percent disabling; right foot residual scar, evaluated as 0 percent disabling; surgical scar, neck, evaluated as 0 percent disabling; tuft fracture of the right ring finger, evaluated as 0 percent disabling; and left upper extremity ulnar scar, evaluated as 0 percent disabling. His combined rating is therefore 80 percent. See 38 C.F.R. § 4.25. Furthermore, for the purposes of a TDIU claim, the Veteran’s peripheral neuropathy of the left and right upper extremities is considered one disability, because they affect both extremities. See 38 C.F.R. § 4.16(a)(1). Applying the bilateral factor to the Veteran’s upper extremity peripheral neuropathies, and combining them with the Veteran’s numerous other ratings, the schedular criteria for TDIU have been met. The Board, however, must still determine whether the Veteran’s service-connected disabilities result in impairment so severe that it is impossible to follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. Following a full and thorough review of the evidence of record, the evidence is in relative equipoise. The Veteran provided two medical opinions from his private health care providers. In a July 2019 correspondence, chiropractor Wade G. Quinn stated that the Veteran has been a patient of his since August 2016. He stated that he is being treated for service-connected pain due to degenerative disc disease with right and left upper extremity. He was unable to sit or stand for extended periods of time, or lift greater than 5 pounds at any time due to pain, weakness, and numbness. He stated that the Veteran’s service-connected disabilities preclude him from maintaining and/or sustaining gainful employment. In another July 2019 correspondence, Earnest P. S. Mawusi, D.P.M., stated that the Veteran has been a patient of his since August 2017, and that he is service connected for right superficial peroneal neuritis and degenerative joint disease of the left foot. Dr. Mawusi stated that the Veteran was unable to stand for extended periods of time. He pointed out that the Veteran had had foot fusions on two occasions to attempt to alleviate the pain; however, he still expressed and demonstrated pain with his right foot which is now affecting his ankle and knee. Dr. Mawusi opined that the Veteran’s service-connected disabilities precluded him from maintaining and/or sustaining gainful employment. Furthermore, the Veteran testified that he has been unemployed since 2014, and that prior to being unemployed, his jobs consisted of warehouse jobs and lawn care. These are jobs that require prolonged standing, lifting, etc. Consequently, he is unable to do them. With regards to sedentary employment, the Veteran has a high school education and is unlikely to find such employment. Even if he did, such a job would likely involve a great deal of upper extremity use, when both upper extremities are disabled In sum, medical and other evidence of record indicates the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. As such, the Veteran’s claim for a TDIU is granted. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.