Citation Nr: 21012583 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-17 045 DATE: March 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran was unable to obtain or retain substantially gainful employment due to service-connected disability alone. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities 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 in the United States Army from April 1979 to April 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed applications for increased compensation based on unemployability in March 2012 and September 2019. The Veteran's claim for entitlement to a TDIU was recognized by the Board in a February 2020 decision as part and parcel of the Veteran's increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU claim was remanded in the decision. This issue has returned to the Board for further appellate review. Entitlement to TDIU Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 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). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating 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 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, or if there are two or more 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. See 38 C.F.R. § 4.16 (a). The Veteran is currently service connected for the following: • Bilateral pes planus, rated as 50 percent disabling from November 28, 2011, and 30 percent from November 27, 2009. • Pilonidal cyst, rated as 10 percent disabling from August 25, 2010. • Limited flexion of the thigh, left hip strain associated with bilateral pes planus, rated as 10 percent disabling from September 19, 2019. • Impairment of the thigh, right hip strain associated with bilateral pes planus, rated as 10 percent disabling from November 29, 2019, and 0 percent from September 19, 2019. • Limited and painful extension of the thigh, right hip strain associated with bilateral pes planus, rated as 10 percent disabling from May 12, 2020, 0 percent from March 30, 2020, to May 12, 2020, and 10 percent from September 19, 2019. • Limited flexion of the thigh, right hip strain associated with bilateral pes planus, rated as 0 percent disabling from September 19, 2019. • Impairment of the thigh, left hip strain associated with bilateral pes planus, rated as 0 percent disabling from September 19, 2019. • Limited and painful extension of the thigh, left hip strain associated with bilateral pes planus, rated as 0 percent disabling from April 1, 2021, and 10 percent from September 19, 2019. The Veteran’s combined evaluation for compensation was 70 percent from April 1, 2021; 80 percent from May 12, 2020; 70 percent from March 30, 2020; 80 percent from November 29, 2019; 70 percent from September 19, 2019; 60 percent from November 28, 2011; 40 percent from August 25, 2010; and 30 percent from November 27, 2009. See 38 C.F.R. § 4.25. Therefore, the Board finds that the Veteran met the schedular criteria for TDIU from September 19, 2019. See 38 C.F.R. § 4.16 (a). The question that remains, then, is whether the Veteran’s service-connected disabilities precluded him from obtaining or engaging in substantially gainful employment. The Veteran contends that the collective effect of his service-connected disabilities is the reason he can no longer obtain and maintain a job. In a September 2019 application for increased compensation based on unemployability (VA Form 21-8940), the Veteran reported working as a driver for a non-profit organization from February 2015 to July 2016. The record indicates that the Veteran worked as a driver, maintenance lead, and food bank coordinator for the organization. In a March 2012 VA Form 21-8940, the Veteran reported working for a tree service from September 2006 to September 2009. The record indicates that the Veteran completed an associate’s degree in human services in May 2015 and bachelor’s degree in human services in June 2017. During the pendency of the claim, the Veteran was provided numerous VA examinations for his service-connected bilateral foot and bilateral hip disabilities. The Veteran was provided a VA examination for hip and thigh conditions in October 2020. The examiner found that the Veteran’s bilateral hip strain impacts his ability to perform occupational tasks. The examiner found pain with prolonged sitting, standing, and walking. The Veteran was provided a VA examination for hip and thigh conditions in June 2020. The examiner found that the Veteran’s bilateral hip strain impacts his ability to perform occupational tasks. The examiner found that the Veteran’s bilateral hip strain may limit walking. The Veteran was provided a VA examination for foot conditions in June 2020. The examiner found that the Veteran’s foot conditions impact his ability to perform occupational tasks. The examiner stated that the Veteran’s foot conditions may limit walking. The Veteran was provided a VA examination for hip and thigh conditions in March 2020. The examiner found that the Veteran’s bilateral hip strain impacts his ability to perform occupational tasks. The examiner found that the Veteran’s bilateral hip strain impacts his ability to stand and walk for long periods of time. The Veteran was provided a VA examination for foot conditions in February 2020. The examiner found that the Veteran’s foot conditions impact his ability to perform occupational tasks. The examiner stated that the Veteran experienced moderate pain with prolonged standing and walking short distances. The examiner found that the Veteran’s foot condition would preclude him from physical labor but not sedentary work which required no lifting, no standing for long periods of time, no walking long distances, or climbing stairs. The Veteran was provided a VA examination for hip and thigh conditions in October 2019. The examiner found that the Veteran’s bilateral hip strain impacts his ability to perform occupational tasks. The examiner found that the Veteran experiences pain with walking more that 10-15 minutes, standing more than 15-20 minutes, going up stairs, and driving. The Veteran was provided a VA examination for foot conditions in June 2019. The examiner found that the Veteran’s foot conditions impact his ability to perform occupational tasks. The examiner stated that the Veteran experienced moderate pain with prolonged standing and walking. The Veteran was provided a VA examination for foot conditions in October 2013. The examiner found that the Veteran’s foot conditions impact his ability to work, but that he would be capable of light physical labor such as teaching or sales. The Veteran’s treatment records during the pendency of the appeal do not indicate that the Veteran's foot and hip disabilities have more of an adverse impact on the Veteran's occupational impairment than reported in the VA examinations. Based upon a review of the evidence of record, the Board finds that the record shows that the severity, symptomatology, and difficulties attributable to the Veteran's service-connected disabilities are contemplated by the assigned rating criteria. The Board acknowledges that the Veteran’s foot disabilities cause the Veteran significant pain, problems, and secondary disabilities (this is not in dispute). The Veteran’s high 50 percent rating for pes planus, the maximum schedular rating available this condition, is in itself recognition that his foot disability makes it difficult to perform occupational tasks and maintain employment. The Board also reiterates that the fact that the Veteran is unemployed, is not determinative; the ultimate question is whether he was incapable, due to service-connected disabilities, of performing the physical and mental acts required by employment. Here, the evidence of record shows that, as a result of his service-connected disabilities, the Veteran has pain with prolonged walking, standing, and sitting. However, the medical evidence does not indicate that the Veteran would be precluded from sedentary employment. Further, the available record and Veteran’s educational background does not indicate that the Veteran is incapable of performing the mental acts required by employment. The Board acknowledges lay statements from the Veteran addressing the impact of his service-connected disabilities on his ability to work. No one is suggesting the Veteran's service-connected disabilities do not cause the Veteran many problems. If he did not have issues with his service-connected problems, there would be no basis for compensable evaluations for these disabilities. While the Veteran is competent to report symptoms he experiences, an opinion as to the limitations on gainful employment due to his service-connected disabilities (and not his age or nonservice-connected problems) is beyond his medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. The medical findings outweigh the Veteran's belief that he is entitled to a TDIU and provide a highly clear basis for the opinion. Therefore, the Board provides more weight to the competent medical evidence of record and must deny the claim. Thus, the Board finds that while the Veteran's service-connected disabilities are productive of some occupational limitations, the objective medical evidence, to include VA examination reports, does not support a finding that the Veteran's service-connected disabilities, separately or combined, precluded his employment. Considering the Veteran’s education and work history, the limitations on prolonged walking, sitting, and standing, as noted in recent VA examinations, would not preclude the Veteran from securing or maintaining substantially gainful employment, especially in a sedentary capacity. In this regard, the Board has also considered the aggregate effect of all the Veteran’s service-connected disabilities on his employability and functional ability. However, a detailed review of the record simply does not support a TDIU finding. Based on the foregoing, the Board finds that the preponderance of the evidence does not support a finding that the Veteran is unable to secure or follow substantially gainful employment due to service-connected disabilities alone. Accordingly, the Board finds that the criteria for a TDIU have not been met and the claim must be denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.