Citation Nr: 21014095 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-37 606 DATE: March 11, 2021 ISSUES 1. Entitlement to service connection for hypertension, claimed as secondary to decrease in activity associated with residuals, left knee anterior cruciate ligament, and meniscus surgery with osteoarthritis. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER Entitlement to service connection for hypertension, claimed as secondary to decrease in activity associated with residuals, left knee anterior cruciate ligament, and meniscus surgery with osteoarthritis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Hypertension was not manifest in service or within one year of separation, is not caused or aggravated by a service-connected disease or injury, and is not otherwise attributable to service. 2. The weight of competent, credible, and probative evidence is that the Veteran’s service-connected disabilities of bilateral foot strain, depressive disorder due to chronic pain, right patellar tendon bursitis, residuals, left knee anterior cruciate ligament and meniscus surgery under two different diagnostic codes, intervertebral disc syndrome, left lower extremity sciatic nerve involvement, left foot and ankle strain, right ankle strain, left thigh muscle atrophy, right hip limitation of extension associated with intervertebral disc syndrome, right hip flexion strain, right hip strain, left knee scar, left hip extension strain, left hip flexion strain associated with intervertebral disc syndrome, and left hip strain with painful motion associated with intervertebral disc syndrome, do not preclude her from procuring or following substantially gainful employment. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service, may not be presumed to have been incurred therein, and is not proximately due to, the result of, or aggravated by service connected disease or injury. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). 2. The criteria for a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1995 to June 1997. This matter is before the Board of Veterans Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. During the pendency of her appeals, the Board observes that an August 2015 rating decision in part favorably split the ankle disability ratings based on specific impairment. It shows, “Evaluation of bilateral foot and ankle strain currently 10 percent for each lower extremity is changed to bilateral foot strain (formerly rated with ankle strain DC 5271) separate from ankle evaluations with an evaluation of 50 percent effective June 25, 2012.” The rating decision also proposed that VA would reduce the Veteran’s evaluation for left lower extremity, sciatic nerve involvement. Next, the Board observes that during the pendency of her appeals, an April 2016 rating decision decreased the Veteran’s evaluation of left lower extremity, sciatic nerve involvement (also claimed as sciatica, tailbone pain), previously evaluated 20 percent disabling, to 0 percent effective July 1, 2016. This issue remained on appeal characterized in part as an ongoing increased rating claim, after considering whether the reduction was proper. See, e.g., January 2019 Board Decision and Remand. Later, a July 2017 rating decision granted a temporary total evaluation of 100 percent from May 24, 2017 for residuals, left knee anterior cruciate ligament and meniscus surgery with osteoarthritis, status post total left knee replacement. A 30 percent evaluation resumed from July 1, 2018. The same rating decision also granted entitlement to special monthly compensation (SMC) based on housebound criteria from May 24, 2017 to July 1, 2018 and Dependents’ Educational Assistance from May 24, 2017. Two months later, in September 2017, a rating decision denied SMC based on aid and attendance. The issues reflected on the title page were previously before the Board in January 2019 at which point they were remanded for additional development. The Veteran was afforded new VA examinations with medical opinions. See D’Aries v. Peake, 22 Vet. App. 97 (2008). The issues were also remanded again in October 2020. An October 2020 rating decision implemented the Board’s October 2020 Decision and favorably restored a 20 percent disability rating effective December 22, 2011 for left lower extremity sciatic nerve involvement. The issues are now back before the Board. (Continued on the next page.) Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran was sent a December 18, 2020 VA subsequent development letter requesting an updated and signed VA Form VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. To date, no updated form has been received. Recently, the Veteran was issued a January 2021 Supplemental Statement of the Case (SSOC) informing her of the critical evidentiary requirements necessary to substantiate her claims. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. 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. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection To establish service connection a Veteran must generally 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, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). We note that hypertension is a chronic disease, and as such, additional presumptive theories of entitlement are relevant in addition to direct service connection. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Under 38 C.F.R. § 3.303 (b), service connection may be established by demonstrating continuity of symptomatology. Continuity may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. The provisions of 38 C.F.R. § 3.303 (b) only apply to diseases recognized by VA as “chronic.” See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.309(a). Chronic diseases that become manifest to a degree of 10 percent or more within one year of termination of active duty may be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for hypertension, claimed as secondary to decrease in activity associated with residuals, left knee anterior cruciate ligament, and meniscus surgery with osteoarthritis The Board incorporates its discussion from the sections above by reference. “Hypertension” refers to persistently high arterial blood pressure. Medical authorities have suggested various thresholds ranging from 140 mm Hg systolic and 90 mm Hg diastolic to as high as 200 mm Hg systolic and 110 mm Hg diastolic as reflective of hypertension. See Dorland’s Illustrated Medical Dictionary, 896 (32nd ed. 2012). Similarly, for VA rating purposes, the term “hypertension” means that the diastolic blood pressure is predominantly 90 mm Hg or greater. The term “isolated systolic hypertension” means that the systolic blood pressure is predominantly 160 mm Hg or greater with a diastolic blood pressure of less than 90 mm Hg. See 38 C.F.R. § 4.104 , DC 7101, Note (1). For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. By way of background, the Service Treatment Records (STRs) include a February 1997 Report of Medical Examination from months before separation. It disclosed a clinically normal evaluation of the heart and vascular system. In the contemporaneous Report of Medical History, the Veteran denied heart trouble and high or low blood pressure. Next, the Veteran filed a June 25, 2012 VA 21-4138 Statement in Support of Claim as part of her set of other claims. She wrote in part on page 1, “I AM NOT CLAIMING hypertension while in [the] military.” She went on to describe other disabilities. Later, the Veteran was afforded a February 2020 VA examination with separate document containing a series of medical opinions. The VA examiner rendered a negative nexus opinion for direct service connection. Significantly, on page 4 of 9, the VA examiner indicated both a positive and a negative nexus opinion. The remarks do not fully reconcile this discrepancy or provide a complete rationale. Still, they show in part: The Veteran’s hypertension is more likely than not secondary to a long smoking history, aging and family history. Tobacco causes the blood vessels to become more rigid and contribute to the development of hypertension. Review of medications shows no long term use of NSAIDs or any other medications for her depression or musculoskeletal conditions that would cause hypertension. Review of records indicate that the Veteran has attended multiple different therapeutic exercise programs, and reported more time to exercise since no longer working. Records indicate that she has smoked over 40 pack years and this is consistently noted as a modifiable risk factor for hypertension. For this issue, the Board observed in October 2020 that a history of cigarette smoking is not a disability in itself. It also not a service-connected disability. The remarks do not address that the Veteran has asserted that her claim is one of secondary service connection in relation to a decrease in activity associated with residuals, left knee anterior cruciate ligament, and meniscus surgery with osteoarthritis. Therefore, the Board explained that this cannot be construed as a complete positive or negative nexus opinion for secondary service connection. Following the October 2020 Board Remand, the Veteran was afforded November 2020 VA medical opinion from the same examiner, Dr. K. K. O. Dr. K. K. O. reviewed the entire claims file and provided clarifying medical opinions. She documented a medical history of hypertension and other factors. She ultimately rendered negative nexus opinions for all theories of direct, presumptive, and secondary service connection, including aggravation. For direct service connection, she reasoned in part: There is no evidence that hypertension existed during service. There was none at MEB, or initial C&P exam. There were no elevated blood pressures noted until 2007. This Veteran served in the Army 1995-11-09-05:00 - 1997-06-03-04:00 MEB Physical Feb 1997 BP 103/70 no mention of any history of high blood pressure Gen Med C&P June 1997 108/76 May 2003 119/70 Aug 2003 111/56 Aug2004. Started on atenolol for sinus tachycardia Oct 2006 122/68 tobacco use noted. Weight 160 lbs May 2007 - on atenolol. Tobacco use. No medications noted that would cause elevated BP Next, she rendered negative nexus opinions for all theories of secondary service connection. The physician opined: The claimed hypertension, is less likely than not (50 percent or less probability) proximately due to or the result of the veteran’s disabilities, to include: residuals, left knee anterior cruciate ligament, and meniscus surgery with osteoarthritis decrease in activity associated with residuals, left knee anterior cruciate ligament, and meniscus surgery with osteoarthritis. Review of medications shows no long term use of NSAIDs or any other medications for her depression or musculoskeletal conditions that would cause hypertension. Review of records indicate that the veteran has attended multiple different therapeutic exercise programs, and reported more time to exercise since no longer working. The evidence of record indicates that she was regularly able to exercise and attend therapeutic exercise programs and that the: residuals, left knee anterior cruciate ligament, and meniscus surgery with osteoarthritis decrease in activity associated with residuals, left knee anterior cruciate ligament, and meniscus surgery with osteoarthritis did not interfere with her ability to participate in exercise programs. Regarding the Veteran’s contentions about aggravation by the use of NSAIDs, the physician elaborated: Review of medications shows no long term use of NSAIDs or any other medications for her depression or musculoskeletal conditions that would aggravate hypertension. Review of records indicate that the Veteran has attended multiple different therapeutic exercise programs, and reported more time to exercise since no longer working. The evidence of record indicates that she was regularly able to exercise and attend therapeutic exercise programs and that the residuals, left knee anterior cruciate ligament, and meniscus surgery with osteoarthritis decrease in activity associated with residuals, left knee anterior cruciate ligament, and meniscus surgery with osteoarthritis did not interfere with her ability to participate in exercise programs. No evidence was found after extensive review of entire claim file that would indicate that any of the Veteran’s service connected conditions the cause or an aggravating factor of her hypertension. The Veteran’s hypertension is more likely than not secondary to a long smoking history, aging and family history. Tobacco causes the blood vessels to become more rigid and contribute to the development of hypertension. Review of medications shows no long term use of NSAIDs or any other medications for her depression or musculoskeletal conditions that would cause hypertension. Review of records indicate that the Veteran has attended multiple different therapeutic exercise programs, and reported more time to exercise since no longer working. Records indicate that she has smoked over 40 pack years and this is consistently noted as a modifiable risk factor for hypertension. Family stress related to her incarcerated son, and care of her grandchildren is noted as a stressor. Pain has never been discussed as a factor and no significant BP elevations were noted during her very frequent ER visits for back pain. Med Board Feb 1997 103/70 Gen Med C&P June 1997 108/76 May 2003 119/70 Aug 2003 111/56 Aug 2004. started on atenolol for sinus tachycardia Oct 2006 122/68 tobacco use noted. Weight 160 lbs. The physician emphasized the Veteran’s ability to participate in exercise programs after service, including even after she was no longer working. Additional VA treatment records show impressions of hypertension, and are substantially the same. The Veteran contends that she is entitled to service connection for hypertension, as secondary to decrease in activity associated with residuals, left knee anterior cruciate ligament, and meniscus surgery with osteoarthritis. The Veteran is competent to provide evidence of that which she experiences, including her symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is also competent to relate what she has been told by a professional. She is competent to report when she was diagnosed with hypertension. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s own lay opinions as to the diagnosis and cause of any hypertension disability are not probative evidence, although the Veteran’s observed symptoms described may be useful to an expert in evaluating whether the Veteran has a disability and in determining the etiology thereof. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Because the record does not indicate that the Veteran has medical expertise, the Veteran’s lay opinion beyond a description of her symptoms is of limited probative value. Here, the most probative evidence is the contemporaneous treatment records, including the STRs, and the medical opinion of the November 2020 VA physician. First, the STRs do not show any signs, symptoms, or medication for hypertension. The Veteran clarified early on that her theory of entitlement is one of secondary service connection. The VA treatment records show impressions of hypertension. The Board assigns substantial probative weight to the contemporaneous treatment records. Second, the Board also assigns substantial probative weight to the comprehensive medical opinion of the November 2020 VA examiner. The VA examiner reviewed the entire claims file, and provided detailed reasons and bases in support of a comprehensive series of negative nexus opinion. The VA examiner rendered negative nexus opinions for all theories of direct and secondary service connection for the hypertension, which considered all in service blood pressure readings. The negative nexus opinions are supported by the objective evidence in the claims file, as cited to by the VA examiner. First, the VA examiner rendered a negative nexus opinion for all theories of direct and presumptive service connection. She reasoned in part: There is no evidence that hypertension existed during service. There was none at MEB, or initial C&P exam. There were no elevated blood pressures noted until 2007. This Veteran served in the Army 1995-11-09-05:00 - 1997-06-03-04:00 MEB Physical Feb 1997 BP 103/70 no mention of any history of high blood pressure The VA examiner based these conclusions upon her medical expertise. Therefore, we assign substantial probative weight to the negative nexus opinions of the November 2020 VA examiner. Regarding direct and presumptive service connection, we find that the Veteran did not have the characteristic manifestations necessary to identify the disease entity in service. Hypertension was not manifest in service or within one year from separation, and are not otherwise attributable to service. There is no probative evidence to the contrary. In addition, the Board finds that while competent to report what she has been told by her physician and to report being told by her physician that she has hypertension, the Veteran’s own lay opinion regarding identifying a potential chronic disease entity, such as hypertension, pales in probative weight when compared to the objective medical evidence of record. Additional causal evidence against the claim, and while not dispositive, is the lapse of so many years between discharge and the first documented reports of a chronic condition many decades after discharge. This multi-year gap after service provides highly probative evidence against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). An alternative method of establishing the second and third Shedden element, under 38 C.F.R. § 3.303 (b), is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). Consideration of entitlement to service connection via the demonstration of continuity of symptomatology is applicable in the present case. However, the most probative evidence in the contemporaneous treatment records and VA medical opinion does not demonstrate such continuity. Consequently, we find that service connection on a direct and presumptive basis for hypertension is not warranted. Next, it appears the Veteran’s theory of entitlement to service connection for hypertension is one of secondary service connection. More specifically, she contends that hypertension is due to a decrease in activity associated with service connected disabilities, including the left knee ACL disability. 38 C.F.R. § 3.310. The Board has considered the evidence of record, and finds that hypertension is not related to service, and is less likely than not proximately due to, the result of, or aggravated by any service connected disability or residuals. Indeed, the February 2020 VA examiner provided a supplemental November 2020 medical opinion supporting a negative nexus opinion for secondary service connection. Dr. K. K. O.’s negative nexus opinions are supported by detailed reasons and bases citing to accepted medical knowledge and evidence in the claims file. In addressing the Veteran’s theories of entitlement, the VA examiner elaborated: Review of medications shows no long term use of NSAIDs or any other medications for her depression or musculoskeletal conditions that would cause hypertension. Review of records indicate that the veteran has attended multiple different therapeutic exercise programs, and reported more time to exercise since no longer working. The evidence of record indicates that she was regularly able to exercise and attend therapeutic exercise programs and that the: residuals, left knee anterior cruciate ligament, and meniscus surgery with osteoarthritis decrease in activity associated with residuals, left knee anterior cruciate ligament, and meniscus surgery with osteoarthritis did not interfere with her ability to participate in exercise programs. For any aggravation, the VA examiner similarly and unequivocally opined in part: No evidence was found after extensive review of entire claim file that would indicate that any of the Veteran’s service connected conditions the cause or an aggravating factor of her hypertension. The Veteran’s hypertension is more likely than not secondary to a long smoking history, aging and family history. Tobacco causes the blood vessels to become more rigid and contribute to the development of hypertension. Review of medications shows no long term use of NSAIDs or any other medications for her depression or musculoskeletal conditions that would cause hypertension. Review of records indicate that the Veteran has attended multiple different therapeutic exercise programs, and reported more time to exercise since no longer working. Records indicate that she has smoked over 40 pack years and this is consistently noted as a modifiable risk factor for hypertension. Family stress related to her incarcerated son, and care of her grandchildren is noted as a stressor. Pain has never been discussed as a factor and no significant BP elevations were noted during her very frequent ER visits for back pain. We find this to be the most probative evidence of record. On the other hand, there is still no competent and probative evidence establishing that hypertension is attributable to service. In this regard, we have specifically considered that Saunders clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Recently, in Wait v. Wilkie, No. 18-4349, the United States Court of Appeals for Veterans Claims (CAVC) addressed the question of what is necessary for a claimant to demonstrate that his or her pain or other symptoms cause “functional impairment of earning capacity,” and therefore meet the current disability requirement under Saunders. The CAVC held that, to meet the current disability requirement under Saunders, “there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.” The CAVC clarified that the Board must make the factual determination whether the appellant’s manifestations rise to the level of a functional impairment in earning capacity. The Board observes that Saunders was in the context of the musculoskeletal system, though it does not explicitly hold that it is limited to such circumstances. Regardless, there is no additional impairment due to pain alone as is addressed by Saunders related to service. It follows that the weight of the evidence is against any indication of a relationship to service for any manifestations of hypertension in service, and the Veteran has not alleged such. Therefore, even after considering Saunders, service connection for a hypertension is not warranted. In sum, the Board has assigned the most probative weight to the contemporaneous medical records, including the STRs, and the findings of the Dr. K. K. O. in the November 2020 VA medical opinion. The VA examiner reviewed the STRs, VA treatment records, objective test results, private treatment records, and considered the Veteran’s lay history. The VA examiner rendered negative nexus opinions for all theories of entitlement. We have found these to be the most probative evidence of record. We have considered direct service connection and theories of both a chronic disease manifesting within one year from separation and continuity of symptomatology where applicable. 38 C.F.R. §§ 3.303, 3.307, 3.309. There is also no nexus to any decrease in activity associated with residuals, left knee anterior cruciate ligament, and meniscus surgery with osteoarthritis, or other service-connected disability. 38 C.F.R. § 3.310. This includes all theories of proximate cause, aggravation, any related medications, and any decrease in exercise. In contrast, the VA examiner found a recent increase in activity by way of the Veteran’s participation in multiple therapeutic exercise programs and more time to exercise because she is no longer working. The VA examiner noted other factors, including tobacco use. There is no probative evidence to the contrary. There is no doubt to resolve. Therefore, service connection for hypertension is not warranted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Board incorporates its discussion from the sections above by reference. Total disability 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. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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 or her age or to the impairment caused by non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006); Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 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). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, a uniform evaluation is warranted. The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. The issue is whether the Veteran’s service-connected disabilities preclude him or her from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). The determination of whether a Veteran is unable to secure or follow a substantially gainful occupation is a legal one, to be undertaken on a case-by-case basis. See Withers v. Wilkie, 30 Vet. App. 139 (2018) (holding the meaning and relevance of the term sedentary work will have to be discerned on a case-by-case basis from the medical and lay evidence presented and considering each Veteran’s education, training, and work history). The ultimate issue of whether TDIU should be awarded is not a medical issue, but is a determination for the adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). In the instant case, the Board observes that the Veteran is service-connected for several disabilities dating back to 1997 and prior to the appeals period. She is also already in receipt of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Her service connected disabilities are: bilateral foot strain, depressive disorder due to chronic pain, right patellar tendon bursitis, residuals, left knee anterior cruciate ligament and meniscus surgery under two different diagnostic codes, intervertebral disc syndrome, left lower extremity sciatic nerve involvement, left foot and ankle strain, right ankle strain, left thigh muscle atrophy, right hip limitation of extension associated with intervertebral disc syndrome, right hip flexion strain, right hip strain, left knee scar, left hip extension strain, left hip flexion strain associated with intervertebral disc syndrome, and left hip strain with painful motion associated with intervertebral disc syndrome. See 38 C.F.R. § 4.25 (2018). Her combined ratings are 10 percent from June 4, 1997, 40 percent from June 28, 2002, 50 percent from July 16, 2002, 60 percent from September 4, 2007, 100 percent from November 20, 2008, 60 percent from January 1, 2009, 80 percent from December 11, 2009, and 100 percent from June 25, 2012 to the present. With this in mind, the Board notes that the Veteran satisfies the minimum percentage rating requirements of 38 C.F.R. § 4.16 (a) (2018) for a TDIU. The Veteran contends that she is entitled to a total disability rating based on individual unemployability due to her left lower extremity and other disabilities. By way of history, there are several VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability forms of record with various important dates. The receipt dates are also important because the Veteran is already in receipt of a 100 percent combined rating since June 25, 2012. AB v. Brown, 6 Vet. App. 35, 38 (1993). Nevertheless, the Board notes that the assignment of a total schedular rating does not automatically render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley v. Peake, the Court found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no “duplicate counting of disabilities.” Bradley, 22 Vet. App. at 293. Therefore, we have considered the evidence and dates from the lengthy appeals period below. Next, several VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability are of record. We will discuss each in the order received. First, listed in VA’s Caseflow system as received on June 20, 2011 is a VA 21-8940 signed on January 7, 2012. It is unlikely that it materialized the year before it was signed. The March 2013 rating decision handles this by simply referring to the document as the January 7, 2012 VA 21-8940. The form shows that the Veteran became too disabled to work in January 2011. However, it also shows “still employed” and “N/A.” for the date the Veteran became too disabled to work. The Veteran listed her occupation was as an Office Assistant working 80 hours or more and earning $2,800 per month in January 2011. Under education and training, the Veteran documented a bachelor’s degree in technical management from October 2006 to February 2010. She wrote that she is currently attending the University of Phoenix for a Master’s Degree, which planned to complete in January 2013. She took a leave of absence for “personal reasons in 11-2011” and just restarted on January 3, 2012. Second, on August 15, 2012, VA received another VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. It shows a similar employment history with the Department of Corrections in Washington State as an Administrative Assistant. The Veteran reported that disability affected full time employment on January 19, 2011, though she worked full time until March 2, 2012. She earned as much as $2,916 in one month from January 2011 to March 2012. The Veteran checked a box indicating that she has not tried to obtain employment since she became too disabled to work. In contrast to reports above, the Veteran denied any education past her four year college degree or other training since she alleges she became too disabled to work. The Veteran wrote, “I worked for Department of Corrections for 6 years. In 2011, my disabilities started making it difficult to work full time. In March 2012, I resigned from my position due to my disabilities.” On November 19, 2012, VA received another VA Form VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. In this form, the Veteran wrote that disability affected full time employment on February 17, 2012. She reported her highest earnings as $1,956.91. She checked the box indicating that she had not tried to obtain employment since she became too disabled to work. The Veteran listed her bachelor’s degree, completed in February 2010. She indicated that she had no other educational background, including no mention of the Master’s Degree. The Veteran signed the form on November 16, 2012. Ongoing Social Security Administration (SSA) records received in November 2012 show a reported history of occupations that required a standing and walking. She reported that she last worked on March 3, 2012 due to her medical conditions. The records show an ability to sit 6 out of 8 hours per day. A letter shows that the Veteran was laid off due to downsizing. An SSA decision dated May 22, 2012 found that the Veteran was not disabled. Next, on April 22, 2013, VA received a private Physical Capacities Evaluation from Dr. P. G., M.D. It is signed on April 4, 2013. Dr. P. G. documented chronic pain in both shoulders, hands, knees, and feet. The Board observes that the shoulder and hand conditions are not service-connected disabilities. Dr. G. wrote that the Veteran would be limited to 15 minutes of sustained standing or walking in an 8 hour day if in a competitive work situation. Dr. G. also indicated that the Veteran would be limited to 2 hours of sustained sitting in an 8 hour day if in a competitive work situation. The Board observes that this does not necessarily demonstrate that the Veteran is unable to work at all due to service-connected disabilities or that she can only sit for 2 out of 8 hours in a given day. For example, she could stand up after every 2 hours of sustained sitting. Next, in January 2014, VA received a clutch of evidence from the Veteran’s former employer. First is a letter dated December 6, 2011 from the Department of Corrections, Washington Corrections Center for Women. It shows that the Veteran received a non-permanent appointment as an administrative assistant. She was set to earn a monthly salary of $2,832. Attached is the aforementioned Physical Capacities Evaluation from Dr. P. G. Later, in June 2015, the Veteran was afforded a series of VA examinations. Of these, a VA mental disorders Disability Benefits Questionnaire (DBQ) is of record. For her relevant history, it reads: She states her parents were together during childhood. She states she was close with both parents. She had five brothers and four sisters. She states her parents have since passed. She states she is currently close with her siblings. She has been divorced two times. She is currently in a relationship. She reports they are close. She has two adult children. She states she is currently having difficulties with one son due to his drug issues. Regarding occupational and educational history, the VA examiner documented: She completed high school prior to service. Her occupation in service was cook. Her highest rank obtained in service was E4. She denies any major infractions. Her discharge was honorable. She has not worked for three years due to her feet, knee and back conditions. She reports she worked for the Dept of Corrections for six years prior to going on disability. The VA examiner documented, “She appeared mildly depressed.” The VA psychologist indicated that the Veteran was capable of managing her financial affairs. In another contemporaneous VA peripheral nerves examination, the VA examiner indicated that the Veteran’s peripheral neuropathy impacts her work in that it affects walking. Next, a February 13, 2017 VA Emergency Department note reads in part, “Objective: A&O X’s 3. NAD. Steady gait with a limp using cane.” Ongoing VA treatment records are substantially the same. The Veteran was recently afforded a battery of VA examinations. In relevant part, the February 2020 VA knee examination shows, “The Veteran stated she was unemployed and her records consistently note that she is a caregiver for two small grandchildren. The knee TKR precludes lifting more than 30 lbs or standing or walking for long periods of time. This condition does not preclude sedentary work in an office or home setting.” Consistently, the February 2020 VA peripheral nerves examination, muscle examination, back examination, ankle examination, and foot examination all separately show an indication that those conditions do not impact her ability to work. Next, the Veteran was sent a December 18, 2020 VA subsequent development letter requesting an updated and signed VA Form VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. Although not legally required as previous forms are of record, they are from several years ago. To date, no updated form has been received. Recently, the Veteran was issued a January 2021 Supplemental Statement of the Case (SSOC) informing her of the critical evidentiary requirements necessary to substantiate her claim. The Veteran contends that she is entitled to a total disability rating based on individual unemployability due to her left lower extremity and other disabilities. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he/she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). First, it is undisputed that the Veteran was gainfully employed until March 2012 performing her relatively steady job as an administrative assistant with the Department of Corrections in Washington State. A review of her competent statements concerning her alleged difficulty securing or following substantially gainful employment is instructive. She maintained gainful employment for several years in her capacity as an administrative assistant. In the August 2012 VA 21-8940, the Veteran reported that disability affected full time employment on January 19, 2011, though she still worked full time until March 2, 2012. She earned as much as $2,916 in one month from January 2011 to March 2012. The Veteran checked a box indicating that she has not tried to obtain employment since she became too disabled to work. SSA records show a report that she was able to sit 6 out of 8 hours in one day. They contain a reference that she was laid off due to downsizing. Later, in November 19, 2012, VA received another VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. This document is inconsistent with previous submissions in several respects. It shows that she only had the highest monthly earnings of $1,956.91, a remarkable $1,000 decline from previous reports. It still shows that she had not tried to obtain employment. Later, at the June 2015 VA psychiatric examination, for occupational and educational history, the VA examiner documented, “She has not worked for three years due to her feet, knee and back conditions. She reports she worked for the Dept. of Corrections for six years prior to going on disability.” In contrast, in the August 2012 VA Form 21-8940, the Veteran had written, “I worked for Department of Corrections for 6 years. In 2011, my disabilities started making it difficult to work full time. In March 2012, I resigned from my position due to my disabilities.” (emphasis added.) Turning to her educational background, her reports in the VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability are inconsistent. First, listed in VA’s Caseflow system as from June 20, 2011 is a VA 21-8940 signed on January 7, 2012. She filed this claim for a TDIU while simultaneously reporting that she was “still employed.” Under education and training, the Veteran documented a bachelor’s degree in technical management from October 2006 to February 2010. She was attending the University of Phoenix for a Master’s Degree, which she listed to be completed in January 2013. She took a leave of absence for “personal reasons in 11-2011” and just restarted on January 3, 2012. Later forms neglect to mention subsequent enrollment in, the ability to participate in, and time occupied by a Master’s Degree program. See August 15, 2012, VA 21-8940. This demonstrates a degree of intellectual function. The Board observes that the Veteran declined to submit an updated form after one was requested in December 2020, which could show, for example, if she was later unable to complete the program. Overall, as consistently reported by the Veteran, she still possesses a bachelor’s degree in technical management. She was employed for approximately five years as an administrative assistant with the Department of Corrections, earning as much as $2,916.00 per month. She has not had employment since then. Other lay and medical evidence establishes that she has difficulty ambulating, standing, and lifting heavy objects. Still, she reports resigning on her own, albeit as claimed due to “going on disability.” We also note that her original TDIU claim was filed while she was, in her own her words, “still employed.” We have considered this. Regarding her search for future employment, the Veteran has indicated that she has declined to try to obtain work. She has also offered a variety of narratives as discussed above for the termination of her most recent position. They range from being unable to work while “still employed,” resignation due to disability, later of pursuing disability benefits (“going on disability”) at the June 2015 VA examination. The inconsistencies in these dated documents are probative. The more recent June 2015 and series of February 2020 VA examinations include indications that the various disabilities do not preclude her return to the workforce. She is able to serve as a caregiver for two small grandchildren. Once again, the Veteran was afforded an opportunity to submit any updated occupational history during the lengthy appeals period. Here, the Board finds that the Veteran’s service connected disabilities do not preclude her from securing or following substantially gainful employment. The Veteran’s consistent reports of previous termination of employment in March 2012 were in part due to other factors. Although she has impairment stemming from lower back, ankle foot, and knee pain, along with related peripheral neuropathy, the weight of the evidence suggests that her service connected disabilities have not rendered her unable to secure or follow a substantially gainful occupation. The Board has fully considered the Veteran’s lay reports. We note other factors. These are generally consistent with the weight of the medical evidence mentioned above. While the Veteran meets the schedular criteria, there is no probative evidence indicating that she has ever been precluded from obtaining and retaining substantially gainful employment by way of her service connected disabilities. Regarding her physical and social functioning, the Veteran reported at the February 2020 VA knee examination that she is a caregiver for two small grandchildren. The VA examiner documented that the knee TKR precludes lifting more than 30 lbs or standing or walking for long periods of time. Nevertheless, the VA examiner opined that the knee condition does not preclude sedentary work in an office or home setting. Previous VA examinations and VA treatment records show impairment in walking, but not total occupational impairment. The February 2015 VA examination described, “She appeared mildly depressed.” There was not a finding of total psychosocial impairment. She maintains contact with family. Lastly, to the extent that she has other non-service connected disabilities, VA may not consider such impairments. Regarding re-entering the workforce, we acknowledge the private treatment records from April 2013 from Dr. P. G. showing that she is in pain and has a limited ability to perform physical work. Dr. G. wrote that the Veteran would be limited to 15 minutes of sustained standing or walking in an 8 hour day if in a competitive work situation. Dr. G. also indicated that the Veteran would be limited to 2 hours of sustained sitting in an 8 hour day if in a competitive work situation. The Board observes that this does not necessarily demonstrate that the Veteran is unable to work at all due to service-connected disabilities or that she can only sit for 2 out of 8 hours a day. For example, she could return to the workforce and file for a reasonable accommodation to limit the time spent sitting, standing, or walking. Recent February 2020 VA examinations and ongoing treatment records do not establish such severe impairment that she is precluded from rejoining the workforce in a similar capacity to her previous position as an administrative assistant. She possesses an educational background of higher education, including at least some Master’s coursework. She is currently able to care for children. In short, the Veteran does not have physical and psychological impairment to such a degree that she is precluded from returning to the workforce. The evidence does not show that she has made concerted efforts to do so. We still considered the combined impact of her service-connected disabilities. That impairment does not rise to the level of a TDIU. The Veteran cannot lift more than 30 pounds. She cannot walk long distances or for long periods of time due to her painful knee and back disabilities. Lifting and ambulating aside, she still has a bachelor’s degree and reasonable social functioning. The Board observes that Withers holds that the precise meaning of sedentary work in any specific case should be based on the context clues of the VA examination or medical report cited as authority. Critically, Withers declines to adopt a specific definition of the phrase “sedentary employment” for VA purposes when adjudicating entitlement to a TDIU, but instead holds, as noted above, that the Board must provide a definition on a case by case basis. Withers, supra. While she cannot sit or stand for long periods, the weight of the evidence establishes that she could leverage her advanced degree along with reasonable accommodations to re-enter the workforce. The Veteran is still able to participate in therapeutic exercise programs, showing some degree of accountability and physical function. When taken holistically, this Veteran’s multiple disabilities do not preclude return to the workforce in a capacity that involves limited lifting. Furthermore, without the Veteran having completed any more recent paperwork, there is also not conclusive evidence that she has not already returned to some form of employment since the inception of her claim many years ago. In short, the Board finds that the weight of competent, credible, and probative evidence demonstrates that her service connected disabilities, including of the left lower extremity, ankles, and feet, do not preclude her from securing or following all forms of substantially gainful employment. The Veteran is also already in receipt of a total rating from June 25, 2012 to the present, in addition to SMC. We considered the medical opinion from Dr. P. G. and her lay reports of unemployability, but they are outweighed by the most probative medical evidence. We acknowledge impairment in walking, as contemplated by the current disability evaluations. The weight of the evidence is still against a finding that the Veteran has been unable to secure or follow a substantially gainful occupation at any time due to service connected disabilities. We note other factors. Therefore, entitlement to a total disability rating based on individual unemployability is denied. 38 C.F.R. § 4.16. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (Continued on the next page.) In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims. As such, the benefit of the doubt rule is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, 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.