Citation Nr: 21076129 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-15 236 DATE: December 22, 2021 ORDER 1. The claim for a rating in excess of 10 percent for left foot injuries with first and second phalange fractures is denied. 2. Entitlement to referral for consideration of a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis prior to December 18, 2018 is denied. FINDINGS OF FACT 1. Residuals of left foot injury with first and second phalange fractures have not been manifested by moderately severe symptoms. 2. Prior to December 18, 2018, the preponderance of the evidence is against a finding that there is a reasonable possibility that the Veteran was unemployable due to service-connected disabilities, and the Veteran is not unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. CONCLUSIONS OF LAW 1. The claim for a rating in excess of 10 percent for residuals of left foot injury with first and second phalange fractures have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5284. 2. The criteria for referral for an extraschedular TDIU rating prior to December 18, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1969 to September 1973. The issue of the Veteran seeking an increased rating for residuals of a left foot injury was previously remanded by the Board in January 2019 and July 2020. In both instances, the Board directed the Department of Veterans Affairs (VA) Regional Office (RO) to obtain a new VA examination for the Veteran's left foot. Such examinations were completed in April 2019 and November 2020 respectively. Additionally, the July 2020 Board remand required the RO to consider some new evidence that was added to the file after May 2019. The RO considered such evidence in a June 2021 supplemental statement of the case. Thus, the Board is satisfied there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to a TDIU rating is based on the Veteran's claim for an increased rating for residuals of left foot injury. The Veteran has previously submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, where he claimed he is unable to secure and follow a substantially gainful employment due his service-connected lumbar degenerative disc disease, bilateral lower extremity radiculopathy, and left toe fracture. The Veteran stated he became too disabled to work as of June 12, 2012. The Veteran was granted a schedular TDIU rating in an April 2021 rating decision as of December 18, 2018. The Veteran did not appeal this claim further. However, where a veteran, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issue of TDIU prior to December 18, 2018 arises out of the Veteran's claim for an increased rating for residuals of left foot injury. 1. Entitlement to a rating in excess of 10 percent for residuals of left foot injury with first and second phalange fractures The Veteran contends his left foot symptomatology continues to be much more severe than what the moderate evaluation of 10 percent implies. He noted in April 2016 that his left foot disability had impairment about the entire foot at that time, as opposed to just the two toes that were originally injured. He stated this impairment becomes further exacerbated with every step he takes. He reports pain with prolonged standing or walking. The Veteran's representative stated a 2012 VA examination clearly confirms that the Veterans left foot injury is a "moderately severe" condition. He stated a significant amount of additional symptomatology was documented in the examination report, the ongoing need for orthotics to aid in ambulation, and the examiner's confirmation of functional impairment all support the higher rating for the Veteran's left foot injury disability. The Veteran's representative stated a higher rating would be in equipoise with the most noted disability confirmed in the VA examination. The VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under 38 C.F.R. § 4.40, consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Furthermore, under 38 C.F.R. § 4.45, functional loss, due to weakened movement, excess fatigability, and incoordination must also be considered. But pain that does not result in additional functional loss does not warrant a higher rating. Disability of the musculoskeletal system is primarily the inability due to damage or infection in the parts of the system to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. The Veteran's left foot disability is rated under DC 5284 for other foot injuries. A moderate disability warrants a 10 percent rating, a moderately severe disability warrants a 20 percent rating, and a severe disability warrants a 30 percent rating. Actual loss of use of the foot warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The terms "moderate" and "severe" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a rating in excess of 10 percent for residuals of left foot injury with first and second phalange fractures. The reasons follow. At an October 2012 VA examination, the Veteran reported that he suffered an injury in service where an iron bar fell on his left foot and crushed his toes, and his foot had worsened over the years since. He said he could walk long distances or stand for extended periods of time. He stated he wore special orthotic shoes, and his foot was much more painful when the weather is cold. The examiner noted that the Veteran had healed fractures of the first and second left phalanges. A physical examination found the Veteran's left foot showed cold, slightly hydrotic, pale pink color, insensate on the dorsum, first and second digits very tender to palpation, thickened toenails, and diminished pulses. The Veteran was noted to wear orthotics shoes. When the examiner was asked to document the severity of the left foot, he checked the "Moderately severe" box. The Veteran underwent a second VA examination of the left foot in April 2019. The Veteran reported he had pain in his foot with movements and manipulations, but his feet were generally noted to be numb due to traumatic neuropathy of the left foot and bilateral diabetic neuropathy. He reported flare-ups and functional loss and that he could not "walk as good." The VA examiner found the Veteran's left foot disability chronically compromised weight bearing and required arch supports. The examiner documented the Veteran used orthotic shoes. The examiner found the Veteran had pain with movement, disturbance of locomotion, and interference with standing. The Veteran was found to have flare-ups of pain with movement and weight bearing that limited the Veteran's ability to stand or walk for prolonged periods of time. When the examiner was asked to document the severity of the left foot, he checked the "Moderate" box. The examiner explained the Veteran did not demonstrate current complaints of pain, but instead reported numbness of both feet, which was present over a symmetric distribution consistent with diabetic neuropathy. The Veteran also had paresthesia. The examiner explained traumatic neuropathy can be associated with paresthesia over the injured area and can also cause a wide range of pain sensations including burning, stabbing, raw, gnawing or sickening sensations. The VA examiner further stated symptoms of diabetic neuropathy can also cause a similar wide range of symptoms, and, therefore, in the setting of the presence of both of conditions, the symptoms overlap and produce a complex set of symptoms that cannot be distinguished. The Veteran underwent a third VA examination of the left foot in November 2020. The Veteran reported pain, but did not report flare-ups. The Veteran again reported pain with prolonged standing or walking. The VA examiner found no pain on physical examination of the left foot, and no functional loss. When the examiner was asked to document the severity of the left foot, he checked the "Mild" box. VA treatment records showed the Veteran received treatment beginning in 2011. A February 2011 VA treatment record shows that the examiner found the Veteran had a normal gait, and that his balance was normal. In VA treatment records, the Veteran complained of pain, and was prescribed pain medication and orthotic shoes in November 2011. Physical examinations showed mixed findings including PT pulses were faintly (lightly) palpable, bilaterally, plantar response present, bilaterally, loss of hair growth on the feet and legs, loss of sub-Q fatty tissue, dermatology exam within normal limits, neurological exam was physiologically intact, very sharp pain on tips of 2nd and hallux toes, toes were sensitive on palpation from the base of the toes distally, pain palpated on the metatarsal shafts and heads also but not as sharp as the toes, strength within normal limits for all four quadrants, range of motion within normal limits all pedal joints without pain or crepitation, and equal bilateral pronation and abduction with stance and gait. Within the VA treatment records, examiners consistently documented that the Veteran had a normal and/or steady gait. See February 2011, September 2011, March 2012, April 2012, July 2012, October 2012, December 2012, April 2013, July 2016, January 2017, September 2017, March 2018, December 2018, and September 2019, December 2020, and June 2021 treatment records. The Board finds that the evidence shows that the Veteran's left foot disability is marked by pain throughout much of the appeal period, which the Board finds is contemplated by the 10 percent rating that was granted throughout the appeal period, which 10 percent rating contemplates a moderate foot disability. However, the preponderance of the evidence is against a finding that the Veteran's left foot disability alone (apart from the service-connected left lower extremity radiculopathy) is manifested by a moderately severe musculoskeletal foot disability to warrant the 20 percent rating under DC 5284. For example, the April 2019 VA examiner described the Veteran's left foot disability as moderate, and the November 2020 VA examiner described it as mild. Both the April 2019 and November 2020 VA examiners found no pain on examination and the November 2020 VA examiner noted no functional loss. The April 2019 VA examiner explained that the Veteran reported numbness of both feet, which was present over a symmetric distribution consistent with diabetic neuropathy. Physical examinations in VA treatment records showed some abnormal findings, but also showed strength within normal limits for the lower extremities, range of motion within normal limits all pedal joints without pain or crepitation, and equal bilateral pronation and abduction with stance and gait. The findings of the April 2019 and November 2020 VA examiners to be highly probative, as they are consistent with the findings in the examination reports and within the VA treatment records. As noted above, the Veteran's gait was consistently described between February 2011 and June 2021 as being steady or normal, which covers an 10 year period. In January 2017, the Veteran was hospitalized at VA for purposes of undergoing surgery (unrelated to the left foot). Documentation of his movements within the in-patient treatment records show he was ambulating in the hallway with a steady gate throughout the day. In a later entry, the employee wrote, "[Patient] is constantly ambulating the hallways, steady gait, no complaints at this time." The Veteran had just undergone surgery and was able to ambulate normally and regularly within the VA facility. In March 2018, the Veteran requested new shoes, stating that he needed new "ortho shoes" for walking exercises, which shows that the Veteran performs walking exercises, which does not support a finding that the left foot disability is moderately severe so as to prevent exercising that requires weightbearing on the foot. The Veteran does not use an assistive device with walking other than using an orthotic shoe. A normal gait for more than 10 years with no use of an assistive device does not support a finding of a moderately severe foot disability. While the Veteran and his representative reported continued worsening of the Veteran's left foot disability, the examinations by the VA examiners and VA treatment records showed many normal clinical findings. The fact that the Veteran underwent two VA examinations finding no more than a moderate left foot disability is highly probative that the Veteran's symptoms have not, in fact worsened. For these reasons, the Board finds that a 20 percent rating or a higher rating under DC 5284 is not warranted. The Board notes the finding by the October 2012 VA examiner that the Veteran's left foot disability was "moderately severe." However, the October 2012 VA examiner did not explain this finding, and this finding is a subjective one, where the Board must evaluate all the facts to determine what level of severity the disability exhibits. The October 2012 VA examiner noted that the Veteran had healed fractures of the first and second left phalanges. A physical examination found some abnormal findings as detailed above, but those abnormal findings are captured by the Veteran's current "moderate," 10 percent rating under DC 5284. The finding that the Veteran's left foot disability is "moderately severe" is also inconsistent with the normal findings in examinations documented within VA treatment records, such as the Veteran having normal strength, normal range of motion with no crepitation, and equal, bilateral pronation and abduction with stance and a normal and/or steady gait. While two more recent VA examinations took place after the Veteran alleged his symptoms had worsened, those examination both found no more than moderate left foot disability. Thus, more weight is afforded to the findings of the April 2019 and November 2020 VA examinations and those documented within the VA treatment records. As the preponderance of the evidence is against the claim for a rating in excess of 10 percent, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to referral for consideration of an extraschedular TDIU rating prior to December 18, 2018 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). In a VA Form 21-8940, Veteran's Application For Increased Compensation Based On Unemployability, received in August 2020, the Veteran wrote June 12, 2012 as the date his disability affected full-time employment, the date he last worked full time and the date he became too disabled to work. He also documented that he did not leave his last job because of his disability. The Veteran wrote that he made $35,000 in 2018. The Veteran has been granted a TDIU rating as of December 18, 2018, which is the point at which he met the schedular requirements under 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Prior to December 18, 2018, the Veteran is service connected for left lower extremity radiculopathy, rated as 10 percent disabling from November 16, 2010; residuals of left foot injury, rated as 0 percent disabling from November 5, 2001, and 10 percent disabling from November 16, 2010; left ear hearing loss, rated as 0 percent disabling from November 16, 2010, and a residual scar, left toes, rated as 0 percent disabling from November 16, 2010. Thus, prior to December 18, 2018, the Veteran does not meet the schedular requirements for a schedular TDIU rating, as he has a combined disability rating of 0 percent from November 5, 2001 and 20 percent from November 16, 2010. During the relevant period from 2012, when he stopped working, to 2018, when he was awarded a schedular TDIU rating, the Veteran has a combined rating of 20 percent. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service (Director), for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Pursuant to Ray v. Wilkie, consideration of an extraschedular TDIU must be referred to the Director of Compensation Service for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities. Ray, 31 Vet. App. 58, 66 (2019). When denying an extraschedular TDIU referral to the Director under § 4.16(b), the United States Court of Appeals for Veterans Claims (Court) held that the Board must make two determinations in its decision: (1) that a referral for extraschedular TDIU is not warranted under the "reasonable possibility" standard set forth in Ray, and (2) that TDIU benefits are not warranted because the veteran is not unemployable due to service-connected disabilities. See Snider v. McDonough, ___ Vet. App. ___, No. 19-6707 (CAVC Nov. 19, 2021). "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 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. at 73. 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). Accordingly, the Board will first analyze whether the evidence of record demonstrates the need for a referral to the Director of the Compensation Service for extraschedular consideration prior to December 18, 2018. The Board finds the preponderance of the evidence is against a finding that there was sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable due to service-connected disabilities prior to December 18, 2018. In a March 2020 VA Form 9, Appeal to the Board, the Veteran's representative wrote the Veteran left his long-time employment several years ago as a direct result of his inability to stand and ultimately due to ambulation issues in general. The Veteran's representative noted that a formal TDIU request would be submitted in the future. Indeed, the Veteran submitted the VA Form 21-8940 in August 2020, where he wrote he was prevented from securing substantially gainful employment due to the service-connected lumbar spine degenerative disc disease, bilateral lower extremity radiculopathy, and left toe fracture. However, prior to December 18, 2018, the Veteran was service connected for left lower extremity radiculopathy, residuals of left foot injury, left ear hearing loss, and scar involving the left toes only. In other words, the Veteran included disabilities of the lumbar spine disability and right lower extremity radiculopathy as contributing to his inability to work for which he was not service connected during that time frame. There is some evidence the Veteran's service-connected disabilities from prior to December 18, 2018 impacted his ability to work. An April 2019 VA examiner noted the Veteran's scar did not impact his ability to work, and the Veteran also did not allege that his left toe scar impacted his ability to work. The Veteran's left foot injury was documented to impact his ability to work in October 2012 and April 2019 VA examination reports, but a November 2020 VA examiner found the Veteran's left foot injury would not have any effect on his ability to function in an occupational environment. The Veteran's left ear hearing loss was noted to impact his ability to work in February 2016 and February 2019 VA examination reports, but an April 2021 VA examiner found the Veteran's left ear hearing loss would not have any effect on his ability to work. The Veteran's peripheral neuropathy was noted to impact his ability to work in April 2019 and January 2020 VA examination reports. Despite the Veteran's service-connected disabilities having some impact on the Veteran's work abilities prior to December 18, 2018, the Veteran documented he was able to perform substantially gainful employment. For example, the Veteran documented in the VA Form 21-8940 that he earned $35,000 in 2018 as a salesperson. The Veteran also wrote he did not leave his last job because of his disability. These statements by the Veteran are afforded significant probative weight. They demonstrate that there was no reasonable possibility that the Veteran was unemployable due to service-connected disabilities prior to December 18, 2018 because the Veteran affirmatively stated he was working in 2018 as a salesperson at a substantially gainful employment level. The 20 percent combined rating in effect prior to December 2018 contemplates the impact on the Veteran's ability to work due to the service-connected disabilities. 38 C.F.R. § 4.1. From 2012 to 2018, VA treatment records consistently show that the Veteran had a normal and/or steady gait. Thus, the Veteran's left lower extremity symptoms would not have precluded his ability to work. Additionally, the Veteran attributed his inability to work to disabilities that were not service connected until December 2018. Thus, the Veteran's own statements do not establish his own belief that just his left foot disability, including the left lower extremity radiculopathy, precluded his ability to work. The Board finds referral to the Director for consideration of an extraschedular TDIU rating is not warranted. Further, the Board finds TDIU benefits are not warranted because the Veteran is not unemployable due to service-connected disabilities prior to December 18, 2018. Specifically, the Board finds the preponderance of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment prior to December 2018. The reasons follow. As noted above, in the August 2020 VA Form 21-8940, the Veteran reported that he was entitled to a TDIU rating based upon the service-connected lumbar spine degenerative disc disease, bilateral lower extremity radiculopathy, and left toe fracture. Again, the Veteran reported he became too disabled to work as of June 12, 2012, but also stated he last worked as a salesperson in 2018. He wrote he had not had any other education or training. The Veteran reported education at the high school graduate level. Also as noted above, VA examinations throughout the relevant period showed some of the Veteran's service-connected disabilities from prior to December 18, 2018 had some impact on his work abilities. An October 2012 VA examiner stated the Veteran would not be able to stand/walk for extended periods, as he did in the past due to his left foot disability. An April 2019 VA examiner found the Veteran's left foot disability caused pain with movement and weight bearing that limited the Veteran's ability to stand or walk for prolonged periods of time. However, a November 2020 VA examiner found the Veteran's left foot injury would not have any effect on his ability to function in any occupational environment. A February 2016 VA examiner noted the Veteran's left ear hearing loss caused the Veteran to have difficulty hearing conversations. In a February 2019 VA examination, the Veteran stated he had difficulty hearing security and police radios before he retired. An April 2021 VA examiner found the Veteran's left ear hearing loss would not have any effect on his ability to work. An April 2019 VA examiner found the Veteran's left lower extremity radiculopathy decreased sensation in his foot that limited the Veterans ability to perform work that required standing or walking over uneven ground. A January 2020 VA examiner stated the Veteran's left lower extremity radiculopathy caused limited tolerance in prolonged walking and standing. However, a VA examination of the Veteran's left toe scar in April 2019 noted the Veteran's scar did not impact his ability to work. The Board has considered the opinions of the medical professionals; however, the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. As to the Veteran's physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran experiences left foot pain, lower left extremity radiculopathy, and left ear hearing loss prior to December 2018. The Veteran's disabilities cause the impacts to his work ability of reduced ability to stand/walk for extended periods, perform work that requires standing or walking over uneven ground, and hear conversations. However, the record shows that the Veteran has remained capable of performing a wide array of physical activities and has remained independent in activities of daily living. Notably, the Veteran was documented to be able to independently bathe/shower, dress, use the toilet, walk, eat, prepare meals, and do chores in July 2016, January 2017, and September 2017 VA treatment records. The Veteran documented in the TDIU application that he worked as a salesperson in 2018 making $35,000, which is affirmative evidence that he had the physical ability to work in 2018. The Veteran also stated he did not leave his last job because of his disability. The evidence shows the Veteran was capable of ambulating with no gait or balance problem and without the use of an assistive device. The Veteran received only sporadic treatment for his physical disabilities without significant exacerbations requiring inpatient or urgent care during the relevant period (The hospitalization in January 2017 was for a non-service-connected disability). Thus, the evidence shows that the Veteran's left foot injury, lower left extremity radiculopathy, and left toe scar disabilities can be accommodated by restricting the Veteran from occupations in which he would be required to spend the majority of his time standing or walking. Despite the Veteran's left ear hearing loss, he has demonstrated the ability to converse and socialize appropriately as demonstrated in a January 2013 VA treatment record that noted the Veteran's hearing was impaired, but he was able to participate. Additionally, VA treatment records do not document that medical professionals had difficulty communicating with the Veteran. Therefore, the Veteran's hearing loss can be accommodated by restricting the Veteran from work in crowded public spaces with high noise exposure. Accordingly, the evidence shows that the Veteran was physically capable of performing substantially gainful employment during the relevant period. As to the Veteran's mental ability to perform substantially gainful employment, he has no service-connected psychiatric disorder. The Veteran's service-connected disabilities have not been shown to cause the Veteran communication deficits. Findings on mental status examination generally indicate the Veteran to be fully alert and oriented with intact cognitive functioning. The Veteran also reported working as a salesperson in 2018 making $35,000, which is affirmative evidence that he had the mental ability to work during that year. 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 this definition for purposes of deciding the Veteran's claim. The Veteran's reported activity levels during the relevant period establish the Veteran's ability to perform sedentary work. 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 prior to December 2018. First, the Board reiterates the Veteran's report of working as a salesperson in 2018 making $35,000, which is affirmative evidence of his ability to perform substantially gainful employment. The Veteran has not alleged that his service-connected disabilities improved in 2018 to allow him to work during that time period, but rather has stated that they have worsened over time. Thus, the evidence shows the Veteran not only could have performed the job as a salesperson prior to December 18, 2018, but that he actually did so. Further, there are a wide range of additional occupations that the Veteran could perform despite his service-connected disabilities. The Veteran's extensive prior employment experience with appliance sales shows that there are jobs that could be performed for which the Veteran is already qualified, such as being a telemarketer. A telemarketer is usually provided with a script that describes the product or services and which job can also be performed from home, which type of job does not require a lot of experience and could be done from a home-office setting that would allow the Veteran to sit as needed. Similarly, a customer service agent interacts with customers to handle complaints, process orders, and answer questions. These types of positions require little exertional activity and can often be performed from home. The Veteran's history of working in sales would lend to his being able to perform these two areas of work. He could wear a headset to allow him to hear people talk. The Veteran could also perform occupations that used less physical activity, such as performing certain cashier positions, or working as a library, movie, or museum attendant. 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 would have been precluded from all forms of substantially gainful employment due to his service-connected disabilities during the relevant period. For all these reasons, the Board finds the preponderance of the evidence is against a finding that the Veteran has been precluded from securing or following a substantially gainful occupation due to his service-connected disabilities prior to December 18, 2018. As the probative evidence of record weighs against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim of entitlement to a TDIU rating prior to December 18, 2018 is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Patton 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.