Citation Nr: 21062560 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 13-28 145A DATE: October 8, 2021 ORDER 1. Entitlement to service connection for a right foot disability, claimed as residuals of ganglion cyst, to include as secondary to service-connected bilateral pes planus, is denied. 2. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against the Veteran's right foot disability having its onset during active service or otherwise being related to active service or caused or aggravated by service-connected bilateral pes planus. 2. The preponderance of the evidence is against a finding that the Veteran has been unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities for the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability, claimed as residuals of ganglion cyst, to include as secondary to service-connected bilateral pes planus, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for referral for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1981 to February 1984. These matters come before the Board of Veterans' Appeals (Board) from a rating decision issued in June 2010 by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was previously denied service connection for his claimed right foot disability in a January 1997 rating decision. The 1997 rating decision became final, but the Veteran's claim was reopened in the November 2020 decision, as the Board determined the Veteran submitted new and material evidence in the form of lay statements and medical treatment records pertaining to the claimed condition. These issues were also remanded in November 2020, along with the issues of entitlement to service connection for a lumbar spine disability and sciatica of the lower extremities, in order to obtain VA examinations relating to the Veteran's claims. The Veteran was granted service connection for a lumbar spine disability and sciatica in a February 2021 rating decision. Therefore, these service-connection matters are no longer part of the current appeal. The Veteran also underwent a VA examination for assessment of his right foot disability in February 2021. The Board finds there has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has alleged that his right foot disability, claimed as residuals of a ganglion cyst, is secondary to his service-connected bilateral pes planus. He has alleged that his combined impairments, particularly pain in his back and legs prevent him from being able to secure or follow substantially gainful employment. Service Connection In general, under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 U.S.C. § 5103(a). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an award of service connection for the Veteran's right foot disability, claimed as residuals of a ganglion cyst. The reasons follow. The Veteran has a diagnosed history of ganglion cysts on the right foot, which have twice required surgical removal. However, the preponderance of the evidence does not show an in-service incurrence or aggravation of this disability, nor a causal relationship between the Veteran's present disability and a disease or injury incurred in service or to the service-connected pes planus. The Veteran's service treatment records are absent of complaints or treatment relating to the claimed right foot disability, separate from pes planus. On entrance examination in January 1981, the Veteran received a normal clinical evaluation of his feet. He reported that he was in good health and denied a history of foot trouble and cysts. Service treatment records do not reflect a specific injury or disease to the Veteran's feet during service. On separation examination in December 1983, the Veteran again denied a history of cysts, growths, or foot trouble. The Veteran was noted to have bilateral pes planus on clinical evaluation of his feet, and the examiner specifically documented, "No complaints." The fact that the examiner documented pes planus when examining the Veteran's feet establishes that the examiner physically examined the Veteran's feet and pes planus was the only clinical finding at that time. Thus, the Board finds that this is affirmative evidence that the Veteran did not have a ganglion cyst at the time of service separation. Further supporting this finding is that the Veteran denied a history of foot trouble on the corresponding Report of Medical History at service discharge. On page two of the Report of Medical History, the Veteran denied a history of "any illness or injury other than those already noted." These facts establish affirmative evidence from the Veteran that his right foot was not bothering him at separation, nor did he experience an illness or injury involving the right foot. As the record shows the Veteran did not incur a ganglion cyst in service, or that he experienced a foot injury or disease, separate from the clinical finding of pes planus (with "No complaints), the preponderance of the evidence is against a finding of an in-service incurrence of a disease or injury relating to the Veteran's residuals of a ganglion cyst or cysts and, therefore, an award of service connection for a right foot disability, claimed as residuals of ganglion cysts, on a direct basis is not warranted. The record does not show that the Veteran complained of right foot problems until 1991, and he had two surgical removals of a ganglion cyst thereafter. Based on the Veteran's reporting in submitted statements and as noted in the medical evidence, the first ganglion cyst removal occurred in 1991 and the second removal surgery for recurrence of the cyst took place in approximately 2001. The Veteran submitted three lay statements, including from his wife, in January 2010 indicating the Veteran to have a cyst on his right foot, but no etiological findings were indicated. The Veteran underwent a VA examination of the feet in June 2017. In August 2017, the examiner provided an opinion that it is less likely than not that the Veteran's history of ganglion cysts is proximately due to or the result of the Veteran's service-connected bilateral pes planus. In the November 2020 remand, the Board indicated that the examiner's rationale did not specifically address the Veteran's contention that the Veteran's condition is secondary to his bilateral pes planus. Additionally, the opinion did not contain a rationale. Thus, the June 2017 opinion is not probative. The Veteran underwent a new VA examination in February 2021. The examiner stated that it is less likely than not that the Veteran's residuals of ganglion cysts were incurred in or caused by an in-service injury, event, or illness, or are secondary to or aggravated by the Veteran's bilateral pes planus. In the rationale, the examiner stated that treatment for ganglion cysts was not present in the Veteran's service records and that there is no supporting medical literature for a connection between pes planus and ganglion cysts. Specifically, the examiner wrote, "There was no information found in a search of medical literature about a connection between pes planus and the development of ganglion cysts." The Board finds that the February 2021 VA opinion is competent and probative regarding secondary service connection, opining that there is no medical literature to support the relationship between pes planus and the development of ganglion cysts. The examiner had physically examined the Veteran, reviewed the evidence of record, and searched medical literature to see if there is a relationship between pes planus and ganglion cysts. While the examiner did not specifically address "aggravation," the Board finds that the opinion is distinguishable from the holding in El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In that case, the Court found that the examiner's opinion that it was "more likely than not that the veteran's alcohol abuse was related to factors other than the veteran's post-traumatic stress disorder" did not rule out the possibility that the veteran's service-connected PTSD aggravated his alcohol abuse to some degree. Id. In contrast, here, the February 2021 examiner opined that that there was no information found in a search of medical literature about a connection between pes planus and the development of ganglion cysts. Because the examiner clearly opined that there was no medical relationship between the service-connected pes planus and the development of ganglion cysts, the examiner's statement, unlike that of the examiner in El-Amin, rules out the possibility that the service-connected disability may aggravate to some degree the non-service-connected disability. Thus, the Board finds that the examiner's opinion addressed both causation and aggravation and is, therefore, probative regarding whether the service-connected disability caused or aggravated the ganglion cysts. This opinion establishes that the ganglion cysts, which were removed in 1991 and 2001, are not related to the service-connected pes planus. The Board acknowledges the research articles submitted by the Veteran indicating that ganglion cysts can arise from trauma. However, such evidence does not consider the relevant facts of the Veteran's case, including what is documented in his service and treatment records. Accordingly, it is not probative in assessing the Veteran's service-connection claim. Additionally, despite the diagnosis of bilateral pes planus in service, the Veteran's service treatment records do not document trauma to the feet during service. The Veteran did not complain of or seek treatment for right foot issues during service. The Veteran had no complaints relating to his pes planus when assessed on separation examination. Additionally, he denied a history of foot trouble and an illness or injury at the time of service discharge. As explained by the 2021 VA examiner, there was no information found in a search of medical literature about a connection between pes planus and the development of ganglion cysts. While the Veteran has alleged that the ganglion cysts are related to the service-connected pes planus, he is not competent to directly link the ganglion cyst to a service-connected disability, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. At the present time, there is no competent and probative evidence of a nexus between the Veteran's ganglion cysts and the service-connected pes planus to weigh against the February 2021 VA medical opinion. As the preponderance of the evidence is against the claim for service connection for a right foot disability, claimed as residuals of ganglion cyst, to include as secondary to service-connected bilateral pes planus, the benefit of the doubt doctrine is not for application, and the Veteran's claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is currently service-connected for bilateral pes planus, plantar fasciitis and callosities with a 30 percent disability rating from May 8, 2017; major depressive disorder with a 30 percent disability rating from June 10, 2021; degenerative disc disease of the lumbar spine with a 20 percent disability rating from May 8, 2021; left lower extremity sciatica with a 20 percent disability rating from May 8, 2017; right lower extremity sciatica with a 20 percent disability rating from May 8, 2017; a scar of the lumbar spine associated with degenerative disc disease of the lumbar spine with a zero percent disability rating from May 8, 2017; and pseudofolliculitis barbae with a zero percent disability rating from May 8, 2017. Thus, the Veteran has had a combined total disability rating of 70 percent from May 2017 and 80 percent from June 2021. Therefore, the Veteran's disabilities meet the schedular requirements for schedular TDIU consideration. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Of record are the Veteran's Social Security Administration (SSA) records. It appears that SSA denied disability benefits. There is a May 2007 letter within these records showing that a district court reversed the SSA's decision, which denied disability benefits. The records show that the Veteran filed for SSA disability in 2006 due to "On the job accident caused limited mobility of arms due to shoulder and back injury, depression." This work-related accident occurred in 2002. It is noted that such a finding is not binding on any determinations made by the VA. VA and SSA use different definitions and standards for determining disability and SSA also considers limitations from all disabilities, versus considering disabilities that are related to service or a service-connected disability. Accordingly, VA is not bound by any findings relating to SSA disability. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran has been precluded from securing or following substantially gainful employment for the duration of the period on appeal. The reasons follow. The Veteran has primarily alleged that his physical issues, including back, leg, and feet disabilities, prevent him from being able to sustain substantially gainful employment. He has reported experiencing chronic back pain with burning pain and reduced sensation in his lower extremities, resulting in reduced mobility. He has also indicated that his physical disabilities cause depression that limit his functioning. The Veteran has a remote history of lumbar laminectomy surgery, performed in approximately 2008. The Veteran has managed his pain symptoms with painkillers, as well as epidural injections, during the relevant period. The Veteran completed a driving assessment and was provided a scooter to aid his mobility due to his back disability; however, the record predominantly reflects the Veteran to be ambulatory with the use of a single-point cane. The Veteran has retained the ability to drive and is able to attend medical appointments independently. He has presented to the emergency department for pain management issues throughout the relevant period, but these instances have generally resulted in conservative measures without the need for inpatient treatment. The Veteran underwent a VA foot examination in June 2017. The examiner stated that the Veteran's bilateral foot disabilities do not impact his ability to perform any type of occupational task but noted that the Veteran experiences pain with extended standing and walking. Treatment notes in June 2017 state that the Veteran last worked in January 2017, picking up garbage in his apartment complex. He indicated that he quit due to shoulder problems, for which he is not service-connected. During a VA examination of the Veteran's spine and associated lower extremity symptoms in July 2017, the Veteran recorded full strength, normal reflexes and normal sensation. The examiner noted that the Veteran is limited in his ability to stand or walk for long periods, bend or lift. In November 2017, the Veteran was asked if anything makes it difficult for him to take care of his health. The Veteran reported only that a recent shoulder surgery makes it difficult for him to bathe himself, but that he receives help from his wife. The Veteran participated in physical therapy in May 2018 but did not experience significant relief of his pain symptoms. He recorded reduced strength and sensation in his lower extremities with some reduced range of motion. He stated that sitting helps to relieve his symptoms, but that he struggles standing or walking for prolonged periods. In late 2018, the Veteran consulted with neurosurgery and was advised that he would likely need another laminectomy and internal fixation procedure in order to address his back condition. Despite this, the Veteran declined to move forward with surgery at that time, stating that he wanted to wait, as he was currently dealing with some family troubles. VA treatment records from early 2019 indicate that the Veteran remained ambulatory with a cane and was independent in his activities of daily living. He recorded full strength in his lower extremities. Private treatment records in March 2019 documented the Veteran's back pain with associated symptoms of weakness, numbness, and tingling. Reports of the Veteran's symptoms and functioning remained generally stable thereafter, and the record does not show that the Veteran underwent another surgical procedure for his back thereafter. The Veteran underwent VA examination for his back, lower, extremities, and foot conditions in February 2021. The Veteran exhibited some slightly reduced strength and reflexes, and normal sensation. The examiner indicated that these conditions affect the Veteran's gait, mobility, and balance, and that muscle cramps will affect his sleep at night. It was noted that pain interferes with the Veteran's daily routines, he cannot walk for prolonged periods, and he cannot stay in one position for too long without his back becoming more painful. The Veteran underwent another VA examination for his back and foot conditions in July 2021. The examiner stated that the Veteran's conditions would cause difficulty walking, standing, or stooping for periods of time. The record does not support a finding that the Veteran's vocational abilities are limited as a result of his service-connected pseudofolliculitis barbae or scar associated with his history of back surgery, which are rated at noncompensable levels. During VA examination in May 2017, the examiner found that the Veteran's skin condition does not impact the Veteran's ability to work. Likewise, on VA examination in July 2021, the Veteran's service-connected scar was noted to have no impact on his ability to work. As to the Veteran's psychiatric disorder, the Veteran has reported that his physical disabilities cause him to be depressed. The Veteran recorded a positive depression screening in November 2017. At the time, when asked how difficult his depressive symptoms make it for him to do work, take care of things at home, or get along with other people, the Veteran responded, "Not difficult at all." The Veteran's depression has been managed conservatively with routine medication management. He has not engaged in recurrent and ongoing counseling and has not required emergency or inpatient treatment for mental health symptoms. Treatment records routinely indicated the Veteran to be alert, fully oriented, pleasant, and cooperative. Examinations in August 2018, December 2018 and April 2019 were negative for depressed mood, anxiety, memory changes, hallucinations, and suicidal ideation. A private treating provider, M.J. McManus, M.D., provided a statement in June 2021 stating that depression causes the Veteran to experience decreased enjoyment, social isolation, decreased concentration, sleep disturbance, weight gain, and decreased sexual prowess. The Veteran was noted to be fully oriented with fair attention, insight, and judgment, normal speech, appearance, and motor activity, and no suicidal ideation. Dr. McManus did not indicate to what extent, if any, that these symptoms impact his functional abilities. The Veteran underwent a VA psychological examination in July 2021. The Veteran reported that he was presently working part-time as a driver for Pleasant Villa. The Veteran's condition was described as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The preponderance of the evidence is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Despite the Veteran's pain symptoms with weakness and reduced sensation/reflexes, the Veteran has maintained independence in activities of daily living and has denied further surgical intervention to address his spine disability. The Veteran is ambulatory with a cane and continues to drive, including working part time as a driver. Although the Veteran's physical disabilities cause depressive symptoms, the record does not demonstrate significant functional limitations resulting therefrom. The Veteran's treatment has been conservative, and he has not required routine therapy or emergency or inpatient treatment. He has indicated that his depressive symptoms do not make it difficult to do work, take care of things at home, or get along with other people. Treatment records generally indicate the Veteran to be polite and cooperative with intact cognitive functioning, and he has continued to work part time as a driver. Accordingly, the weight of the evidence suggests that the Veteran is not precluded from substantially gainful employment due to service-connected disabilities. Regarding the Veteran's education, training, skills, and work history, the Veteran has reported that he has a high school degree and that he attended college for one year before joining the military. (The Veteran did not document the one year of college on the VA Form 21-8940, Veteran's Application for Increased Compensation Based On Unemployability.) The Veteran reported that he worked at a restaurant during his high school years. Following his discharge from the Army, the Veteran worked with his uncle building houses. He then sold vegetables for 15 years on a plant farm. An August 1997 psychological evaluation shows that the psychologist wrote that the Veteran's work history revealed he had "primarily been employed as a janitor in a school setting" and had "substitute taught" from time to time. Within the Veteran's SSA disability application, he wrote he had done work as receiving clerk/truck unloader, refueler, steward in a prison, janitor, and then was a delivery driver from 1994 to 2002. In 2017, the Veteran reported working picking up trash at his apartment complex, indicating that he quit due to a nonservice-connected shoulder injury. In June 2021, he reported that he is working part time as a driver for Pleasant Villa. The Veteran's varied work history demonstrates a capacity for learning and training that does not appear to be hindered by his service-connected disabilities. These attributes would facilitate the Veteran's return to substantially gainful employment in a line of work that the Veteran can perform. As to the Veteran's physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran experiences pain symptoms with reduced mobility that impacts his functional abilities. However, physical examinations indicate that the Veteran is ambulatory with the use of a cane. He has demonstrated independence in his activities of daily living and has continued to drive and work part time. The Veteran's conditions have been managed conservatively with medication management, epidural injections, and physical therapy, and the Veteran has not pursued additional surgical options when suggested by treating sources. These findings do not show physically incapacitating levels of impairment. The record indicates the Veteran's primary limitations to be difficulty with prolonged standing and walking; however, the totality of the evidence shows that the Veteran is capable of performing work at least at the sedentary exertional level with the use of a cane for ambulation, and the ability to occasionally change positions to avoid prolonged sitting for multiple hours at a time. The Department of Labor's Dictionary of Occupational Titles (DOT) defines sedentary work as exerting up to 10 pounds of force occasionally (i.e., up to one third of the time), and/or a negligible amount of force frequently (i.e., from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. According to the DOT's definition, sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. The Board finds no prejudice to the Veteran in considering the definition for purposes of deciding this claim. Accordingly, the weight of the evidence shows that the Veteran is physically capable of performing substantially gainful employment. As to the Veteran's mental ability to perform substantially gainful employment, the record shows that the Veteran experiences depressive symptoms secondary to his physical disabilities. However, the record does not demonstrate that these symptoms have a significant impact on the Veteran's functional abilities. As stated, the Veteran has required conservative treatment without the need for emergency or inpatient care. The Veteran has maintained independence in his activities of daily living and has continued to work on a part-time basis. Treatment records indicate the Veteran to be fully alert and oriented, with an appropriate mood and affect, and fair attention, insight, and judgment. He has routinely demonstrated appropriate behavior and been described as pleasant and cooperative. The Veteran also stated that depressive symptoms do not make it difficult for him to do work, take care of things at home, or get along with other people. As the Veteran's service-connected disabilities are not shown to result in significant psychiatric limitations, the weight of the evidence shows that the Veteran is mentally capable of performing substantially gainful employment. Based on the above assessment of the Veteran's physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran is capable of work that would result in income at the level of substantially gainful employment. For example, the Veteran could perform jobs such as a telemarketer or customer service agent, where the employee makes or takes calls and primarily reads from a script, which does not require extensive training or experience. A customer service agent interacts with customers to handle complaints, process orders and answer questions. These positions would allow the Veteran to switch positions as necessary. Similarly, the Veteran appears capable of performing certain cashier or assembly line positions, or work as a library, theater, or museum attendant, positions that would not be physically demanding and would allow the Veteran to change positions intermittently. Furthermore, as the Veteran continues to work part time as a driver, this shows that he could work as a driver for ride services, such as Uber or Lyft, as these occupations would provide the Veteran with flexible schedules and the ability to take breaks as needed in order to change positions and avoid prolonged sitting for multiple hours at a time. These jobs would not be impacted by the Veteran's use of a cane. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could perform. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment due to his service-connected disabilities during the relevant period. For all the reasons described above, the Board finds that the preponderance of the evidence is against a finding that Veteran is precluded from all forms of substantially gainful employment and, therefore, is not entitled to a TDIU rating. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, entitlement to a TDIU rating is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, Associate 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.