Citation Nr: 21063437 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-41 667 DATE: October 14, 2021 ORDER Entitlement to a total disability rating based on total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence does not demonstrate that the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1962 to May 1966. In April 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Addressing the most relevant procedural history, this claim was most recently previously before the Board in March of 2021. At that time, it was remanded for additional development, to specifically include providing the Veteran with VCAA notice requirements for a TDIU claim and thereafter developing and adjudicating the claim. The claim is now before the Board once again for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). Entitlement to a TDIU is denied. The Veteran contends that he is entitled to a TDIU due to his service-connected conditions. 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. 38 C.F.R. § 4.16 (b). A TDIU will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities resulting from a common etiology will be considered as "one disability." Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16. Here, the Veteran does not meet the schedular criteria for a claim of TDIU. He is currently service-connected as follows: 20 percent for right hallux rigidus with hammertoes 2nd, 3rd, and 4th metatarsals s/p fracture; 20 percent for post traumatic arthritis with fracture, right medial malleolus; and noncompensable for first MPJ fusion/arthroplasties 4/5 digits right foot great toe, linear associated with right hallux rigidus with hammertoes. Thus, he has a combined rating of only 40 percent. The remaining inquiry is whether the Veteran is unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. The Veteran asserted on his August 2021 VA Form 21-8940 that he has a high school education with no additional education or training. He stated that he last worked in February of 2014 managing the bar/nightclub that he owned at that time. It was also indicated that the Veteran had also owned and managed an additional entertainment venue up until December of 2013. The Veteran further stated that he did not lose any days of work from his illnesses in either position and did not leave his last job because of his service-connected disabilities. At his September 2015 Compensation and Pension examination in regard to his feet, the Veteran indicated that his podiatric surgery the prior year relieved some of his pain, but he also related pain on weight bearing and ambulation. The functional impact of the Veteran's conditions was described by the VA examiner as a "decreased ability to ambulate for longer distances and stand for prolonged time." A VA ankle examination conducted the same month in regard to his arthritis yielded a nearly identical opinion. At the Veteran's July 2020 Compensation and Pension examination, the Veteran relayed complaints of pain in his right foot that was described as "a combination of sharp, dull and achy pain" as well as loss of motion and a decreased ability to walk, stand, squat, kneel and climb. The VA examiner articulated the functional impact of the Veteran's conditions as a "decreased ability to walk more than 10 minutes without a break. Decreased ability to climb more than infrequent. Decreased ability to run at all. Decreased ability squat or kneel more than infrequent." A July 2020 VA ankle examination similarly indicated that the functional impact of that condition is a "decreased ability to walk or stand more than 15-20 minutes without a break or climb more than infrequent" and a "decreased ability to run at all." At the October 2021 VA examination in regard to his arthritis, it was noted that the Veteran is retired and had "0-1 week[s of] work time lost in last 12 months". The functional impact of the Veteran's condition was described by the VA examiner as "pain and decreased ROM. Difficulty standing and walking prolonged period of time." It was additionally indicated at an VA ankle examination that month that "Veteran with difficulty walking and standing long periods of time due to ankle pain and swelling". An October 2021 VA foot examination referenced the same occupational implications attributable to "foot pain and decreased ROM". The VA treatment records associated with the claims file also clearly document ongoing foot and ankle related concerns. Further, the Board acknowledges that the Veteran's service-connected conditions have some occupational impact. However, in viewing the Veteran's entire disability picture, there is no indication that the Veteran's service-connected conditions preclude him from substantially gainful employment. The Board has considered the Veteran's level of education and previous work experience. See 38 C.F.R. §§ 4.16. As stated above, the Veteran has indicated that he has a high school education with no additional education or training. However, the Board observes that the Veteran reportedly owned and operated two separate entertainment venues for a number of years. He also reported earning well into the six figures at one point, indicating that he was in fact successful with these ventures. Notably, the Veteran himself has asserted that the Veteran had not lost any time due to his service-connected disabilities. Further, there is no evidence in the record that the Veteran had to be accommodated at work, nor of an inability to interact with coworkers or the public. In contrast, the Veteran reported having respectively owned and managed a bar/nightclub and lounge which, by nature, are entertainment venues that involve operating with both staff and the general public. The Veteran's lay statements that his service-connected disabilities prevent him from securing or following substantially gainful employment have been considered and the Board affords them probative value in acknowledging that the Veteran's physical limitations seemingly make some occupational activities more difficult. Indeed, it is well-documented that his service-connected disabilities create limitations with walking, standing, climbing etc. However, and notably, the Veteran has indicated that he stopped working in his most recent positions because he retired, not due to his asserted disabilities. The Board finds it highly probative that the Veteran himself has not described any prior issues with adapting to his previous positions. Based on the foregoing, the Board finds that the Veteran is capable of performing sedentary work that involves sitting most the time, but that 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 employs this definition of sedentary employment in the current case based on the analysis outlined above. See Withers v. Wilkie, 30 Vet. App. 139 (2018). In addition, although the Veteran has been in receipt of SSA benefits since February of 2011, this was awarded based on age and not as a result of disability. Further, unlike SSA benefits and other government programs that provide financial or other aid to individuals based on alternate criteria, VA benefits are not awarded based on age, current financial hardship, or general maladies in health. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Instead, the Board reiterates that a TDIU is warranted only when it is demonstrated that a Veteran is prevented from securing or following substantially gainful employment due solely to service-connected disabilities. The Board has also considered the assertion in the March 2021 appellate brief that "we find it highly impossible based on the appellant's disability, accomodation requirement, age, and education level for him to obtain a gainful employment and that his earning capacity has been exceptionally impaired. Therefore, an extra-schedular rating should be assigned to the appellant". As such, the Board has considered whether this issue warrants referral for consideration of an extraschedular rating. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321 (b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Thun, 22 Vet. App. 111. If not, the second step is to determine whether the Veteran's exceptional disability picture exhibits other related factors identified in the regulations as governing norms. Thun, 22 Vet. App. 111; 38 C.F.R. § 3.321 (b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. In addition, the United States Court of Appeals for Veterans Claims (Court) recently issued a decision clarifying that in analyzing whether referral for extraschedular consideration is warranted, Thun's first step requires consideration of whether the rating schedule as a whole, as opposed to a specific diagnostic code, is capable of assessing the Veteran's symptomatology. See Long v. Wilkie, No. 16-1537 (Vet. App. December 30, 2020). Here, the Veteran's respective disabilities are manifested by reports of pain and limitations with regard to walking, standing, running etc. Such manifestations and related impairment are fully contemplated by the regular schedular criteria. There is no objective medical evidence of other physical findings, complications, signs or symptoms related to the Veteran's service-connected conditions. The Board notes that the Veteran has not identified, nor do the VA examination reports or treatment records associated with the claims file document any other symptoms that are exceptional or unusual enough that they are not contemplated under any applicable diagnostic codes. It is further noted that the March 2021 appellate brief also states that "because his limited ability to moving around and constant assistance are required, the appellant is closely, if not, to become bedridden from the overall disabilities". The Board is unable to discern from the records currently associated with the claims file any evidence of the Veteran being bedridden due solely to his service-connected right foot and ankle conditions, or in fact, whatsoever. For example, an August 2019 VA treatment record notes that the Veteran is "Able to Take Care of Self" and described his "Ambulation" as "Independent". His most recent examinations also clearly indicate that he continues to be able to walk and ambulate, albeit not for long periods of time. Unfortunately, the Board is unable to award benefits based on the unsubstantiated possibility of a worsening in the future that could lead to the Veteran becoming bedridden. Furthermore, as outlined above, there is nothing exceptional or unusual about the Veteran's respective disabilities or the way that they cause occupational impairment. See Long, No. 16-1537. Accordingly, referral for extraschedular consideration is not warranted. Lastly, the Board has considered the assertion made in the March 2021 appellate brief that "without a professional opinion from a vocational expert, we find VA Advisory Opinion lack of credit". The Veteran's representative has seemingly challenged the qualifications of the VA examiners who conducted the various examinations he has been afforded during the claims period. Notably, however, the Veteran's representative has not made any specific allegation regarding a potential deficiency in this regard. The Board notes that, in the absence of a specific allegation outlining why an examiner is not competent to conduct a medical examination or provide a medical opinion, VA examiners are presumed to be competent. Parks v. Shinseki, 786 F.3d 581, 585 (Fed. Cir. 2013); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). This presumption of competence is still in effect and the United States Supreme Court has declined to review it. See Mathis v. Shulkin, 2017 U.S. Lexis 4058 (June 26, 2017) (denying writ of certiorari to review the presumption of competence of VA examiners). The Veteran's representative has not alleged a colorable potential deficiency with regard to the qualifications of the VA examiners. Therefore, the Board may rest on the presumption that the examiners were competent. Further, there is a wide array of expertise that the Board may accept in finding an examiner, or other person providing evidence, competent. See Cox, 20 Vet. App. 563, 569 (physician's assistant was competent to perform examination); Goss v. Brown, 9 Vet. App. 109 (1996) (recognizing that nurses' statements regarding nexus were sufficient to make a claim well grounded); Williams v. Brown, 4 Vet. App. 270, 273 (1993) (finding opinions of a VA registered nurse therapist competent medical testimony and requiring the Board to provide reasons or bases for finding those opinions unpersuasive). Therefore, the requested additional vocational opinion would not be helpful to the outcome of the claim. See 38 C.F.R. § 3.159 (d). (Continued on the next page) The Board emphasizes that the evidence of record is consistent with the fact that the Veteran is able to secure or follow a substantially gainful sedentary occupation. Although he has some physical limitations in regard to his lower right extremity, the evidence does not establish a total inability to secure or maintain employment when only his service-connected conditions are considered. In sum, a TDIU is not warranted because the Veteran does not meet the schedular requirements, as he has a combined rating of only 40 percent. Additionally, the Veteran's service-connected disabilities have not precluded him from securing or following a substantial gainful occupation. The preponderance of the evidence is against the Veteran's appeal, the benefit-of-the-doubt rule is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.