Citation Nr: 21015248 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-06 187 DATE: March 17, 2021 ORDER Entitlement to an initial 10 percent evaluation, but no higher, for residuals of post-surgical removal of the left great toenail (exclusive of a temporary total evaluation from August 18, 2016, to September 30, 2016) under Diagnostic Codes 7813-7804 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial 10 percent evaluation, but no higher, for residuals of post-surgical removal of the right great toenail (exclusive of a temporary total evaluation from August 18, 2016, to September 30, 2016) under Diagnostic Codes 7813-7804 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s residuals of post-surgical removal of the left and right great toenails are the functional equivalent of painful scars, the predominant disability. 2. The Veteran has met the schedular criteria for TDIU throughout the appeal period. 3. The Veteran’s service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent evaluation, but no higher, for residuals of post-surgical removal of the left great toenail (exclusive of a temporary total evaluation from August 18, 2016, to September 30, 2016) under Diagnostic Codes 7813-7804 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Codes 7813-7804. 2. The criteria for an initial 10 percent evaluation, but no higher, for residuals of post-surgical removal of the right great toenail (exclusive of a temporary total evaluation from August 18, 2016, to September 30, 2016) under Diagnostic Codes 7813-7804 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Codes 7813-7804. 3. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to January 2011. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA). In a September 2018 decision, the Board dismissed other claims on appeal and remanded the left and right great toenail increased evaluation claims for further development. The Board remanded the claims for further development in December 2019, also finding that a TDIU claim had been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The requested development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). I . Increased Evaluation – Left and Right Great Toenails Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Fenderson v. West, 12 Vet. App. 119, 125-27 (1999). In this case, the now-assigned uniform evaluation, but no higher, is warranted based on the evidence. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks higher evaluations for his service-connected residuals of post-surgical removal of the left and right great toenails. He has contended that he has experienced difficulties since the initial in-service procedure to remove his great toenails that made his feet worse than before, including the toenails growing back disfigured; the toenails requiring filing down every six months to allow him to tolerate and maintain them; and the great toes swelling and being sore and painful, affecting his walking. See, e.g., October 2012 notice of disagreement; VA treatment records from January 2016 (toes hurt at end of the day at previous job after walking) and April 2016 (weight-bearing pain); February 2016 substantive appeal. He is currently assigned noncompensable evaluations pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7813 for dermatophytosis. The rating criteria for the skin were amended effective August 13, 2018. VA’s intent is that claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. See 83 Fed. Reg. 32592-32601 (July 13, 2018). The agency of original jurisdiction (AOJ) considered the new rating criteria when readjudicating the case in the September 2019 and August 2020 supplemental statements of the case. Under the pre-amendment version of Diagnostic Code 7813, dermatophytosis is rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. Under the post-amendment version, Diagnostic Code 7813 is evaluated under the General Rating Formula for the Skin (General Rating Formula, Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824). Alternatively, the disability may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability. This rating instruction does not apply to Diagnostic Code 7824. Diagnostic Code 7800 pertains to scars and other disfigurement of the head, face, or neck, and is not for application in this case. Diagnostic Code 7801 pertains to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear (pre-amendment)/associated with underlying soft tissue damage (post-amendment). A 10 percent evaluation is warranted for area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters), with higher evaluations for larger areas. Diagnostic Code 7802 pertains to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear (pre-amendment)/not associated with underlying soft tissue damage (post-amendment). A 10 percent evaluation is warranted for area or areas of 144 square inches (929 square centimeters) or greater. Pre-amendment Notes (1) and (2) provide that a deep scar is one associated with underlying soft tissue damage (Diagnostic Code 7801) and a superficial scar is one not associated with underlying soft tissue damage (Diagnostic Code 7802). If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under 38 C.F.R. § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck (Diagnostic Code 7801) and scars that are nonlinear, superficial, and are not located on the head, face, or neck (Diagnostic Code 7802). Post-amendment Notes (1) and (2) provide that for the purposes of Diagnostic Codes 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under §4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. Under Diagnostic Code 7804, a 10 percent evaluation is warranted for one or two scars that are unstable or painful. Notes (1) to (3) provide that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Under Diagnostic Code 7805, any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate diagnostic code. The amendment removed the specific reference to linear scars. Under the pre-amendment version of Diagnostic Code 7806, a noncompensable evaluation is warranted for dermatitis affecting less than 5 percent of the entire body or exposed areas; and, no more than topical therapy required during the past 12- month period. A 10 percent evaluation is warranted for dermatitis affecting at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than six weeks during the past 12-month period. For the purposes of the post-amendment 38 C.F.R. § 4.118, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. Two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. 38 C.F.R. § 4.118(a) and (b). Under the General Rating Formula, a noncompensable evaluation is warranted for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or, characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent evaluation is warranted for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or, at least 5 percent, but less than 20 percent, of exposed areas affected; or, intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that initial 10 percent evaluations are warranted for residuals of post-surgical removal of the left and right great toenails under Diagnostic Codes 7813-7804. Historically, the Veteran sought in-service treatment for foot complaints in February 2000, including discoloration of his great toenails that had started two years prior; he described the toenails as being dead and requested they be removed. On examination, the great toenails were noted to be very thick, dark, discolored, irregular, and dystrophic without drainage. The assessment in relevant part was onychomycosis. The Veteran opted for a total matrixectomy (permanent removal) of the bilateral great toenails that was performed several days later, including a chemical application to attempt to prevent regrowth. During the November 2010 VA general medical examination performed shortly before the Veteran’s retirement from service (for his original compensation claim filed as part of the benefits delivery at discharge program), he reported constant pain in the great toenails, exacerbated by physical activity, that made it difficult to function at times. On examination, the Veteran’s great toenails had grown back and were noted to be thickened, misshaped, and tender to pressure. The diagnosis was post-surgical removal of toenails bilaterally with misshaped and thickened toenails. During the appeal period, the Veteran has experienced similar problems with his great toenails, requiring two additional, similar procedures to remove them in 2012 and 2016 after they grew back. The record shows that the toenails were noted to be ingrown, deformed, atrophied, and lytic when they grew back, and the Veteran reported pain. See, e.g., April 2012 private treatment record; VA treatment records from January 2016, April 2016, June 2016, and August 2016. An April 2012 private treatment record from the Veteran’s first appointment with Dr. M.A. shows that the Veteran presented with thick, mycotic hallux nails that were causing some difficulty for him in shoes. The assessment was onychomycosis (the same diagnosis provided at the time of his in-service treatment) and onychocryptosis. The Veteran opted to undergo the first of the two post-service procedures that same month. The following month, Dr. M.A. noted the Veteran had normal post-operative healing with some slight serious drainage on the left hallux that he treated that day; he indicated that it should resolve within the next week. See private treatment records from April 2012 and May 2012. See also December 2019 AOJ letter (request for any additional non-VA treatment records or completed release). An August 2016 pre-surgical VA treatment record shows that the Veteran again had painful, thick great toenails assessed as atrophied/deformed and ingrown, and another total matrixectomy was performed that same month. The August 2016 surgical pathology report reflects that both toenails were again positive for onychomycosis. See also VA examination reports with similar findings from August 2019 (noted toenail fungus in other toenails a separate issue not caused by the service-connected condition; confirmed 2012 procedure was also related to service-connected disabilities and difficulties with prolonged weight-bearing causing nail pain that progressed to the toes and feet) and April 2020 (noted bilateral great toes were pink with slight edema and no nails, tender to palpation; confirmed 2012 procedure was also related to service-connected disabilities and continued limitation with prolonged standing and walking). The October 2016 and May 2018 VA foot examinations noted the Veteran reported great toe/foot pain, including after the third procedure, but the examiners did not specifically address the service-connected left and right great toenail disabilities. On review of the record, the Veteran’s residuals of post-surgical removal of the left and right great toenails have been shown to be the functional equivalent of two painful scars. These findings warrant a compensable evaluation under Diagnostic Codes 7813-7804 as the predominant disability, and Diagnostic Code 7804 remained unchanged in the new criteria. In this regard, as noted above, the Veteran has experienced ongoing difficulties with the toenails since his initial in-service procedure resulting from onychomycosis in those toenails, including pain that becomes more severe on prolonged weight-bearing, as well as difficulties such as needing to sand down the toenails to attempt to avoid further problems with his foot. The August 2016 surgical procedure note shows findings of scar tissue, along with atrophied nail plates and hypertrophied matrix of both great toes. Regarding the alternative and additional rating criteria under both versions of Diagnostic Code 7813 and associated provisions, the record does not suggest that the affected areas meet the size or other characteristic requirements for evaluation under the other scar rating criteria outlined above. The affected area measurements (entire body and exposed areas) are consistent with a noncompensable evaluation, and the Veteran has not been shown to be treated with the medications contemplated in the higher evaluations. He was awarded a temporary total evaluation based on supporting evidence that he met the requirements of 38 C.F.R. § 4.30 following the 2016 procedure, but the record does not support such a finding for the 2012 procedure (part of the 2019 Board remand inquiry). In addition, he has been found to have normal neurological findings during VA treatment without a diagnosis of a related neurological problem. See, e.g., VA examination reports from August 2019 and April 2020; VA treatment records from April 2016, June 2016, August 2016, and October 2016. The Veteran has also been separately service-connected for bilateral plantar fasciitis throughout this appeal period, and those 30 and 50 percent evaluations contemplate, among other things, pain of the foot itself. See, e.g., April 2016 VA treatment record (podiatry appointment, noted foot pain around the medial arch and plantar of both feet with associated pronated gait and diagnosis of bilateral plantar fasciitis) and May 2018 VA foot examination report; October 2016 and June 2018 rating decisions. The rating schedule generally prohibits pyramiding (evaluating the same disability under different diagnostic codes), and the United States Court of Appeals for Veterans Claims has held that pyramiding is disfavored “unless the regulation expressly provides otherwise.” Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) and 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (separate evaluations may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition). The record also does not suggest that the great toenails disabilities are of the actual or equivalent severity of the toe disabilities under 38 C.F.R. § 4.71a (including Diagnostic Codes 5280 and 5281 for operation with resection of the metatarsal head of the toe, severe hallux valgus equivalent to amputation of the great toe, or hallux rigidus) to warrant a separate compensable evaluation by analogy under that rating criteria. See, e.g., VA examination reports from May 2018 (foot findings, including notations that Veteran does not have such toe disorders); August 2019 and April 2020 (toenail findings). Based on the foregoing, the Board finds that the evidence supports the assignment of a 10 percent evaluation, but no higher, for each toe for the residuals of post-surgical removal of the left and right great toenails (exclusive of a temporary total evaluation from August 18, 2016, to September 30, 2016) under Diagnostic Codes 7813-7804, and the claims are granted to this extent. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (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). II. TDIU All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists 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. 38 C.F.R. §§ 3.340, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. In this case, the Veteran is service-connected for sleep apnea (50 percent disabling); tension headaches to include migraines (noncompensable prior to August 11, 2016, and 50 percent disabling thereafter); bilateral plantar fasciitis (previously evaluated as bilateral feet degenerative changes, plantar fasciitis, and calcaneal spurs, 50 percent disabling prior to May 17, 2018, and 30 percent disabling thereafter); cervical spine degenerative changes status post surgery (0 percent disabling prior to August 11, 2016, and 20 percent disabling thereafter with a temporary total evaluation from December 12, 2018, to March 31, 2019) with associated left upper extremity (20 percent disabling) and right upper extremity (30 percent disabling) radiculopathy effective from October 19, 2016; left hip and cervical spine (10 percent disabling prior to August 11, 2016); degenerative changes of the left hip (10 percent disabling effective from August 11, 2016) with associated limitation of rotation (0 percent disabling effective from August 11, 2016) and limitation of extension of the left thigh (0 percent disabling effective from October 19, 2016); tinnitus (10 percent disabling); retinal degeneration in both eyes, hypertension, pseudofolliculitis barbae (each 0 percent disabling); and residuals of post-surgical removal of the left and right great toenails (both 0 percent disabling with a temporary total evaluation from August 18, 2016, to September 30, 2016, pending effectuation of the grant of a 10 percent evaluation based on this decision). The combined evaluation has been 80, 90, or 100 percent, and the Veteran has met the schedular criteria throughout the appeal period. See 38 C.F.R. § 4.16(a) (disabilities affecting a single body system and sufficient additional disability to bring the combined evaluation to 70 percent) and August 2020 codesheet. The Veteran is also in receipt of the temporary total evaluations for his cervical spine disability and left and right great toenail surgeries noted above, as well as special monthly compensation at the rate under 38 U.S.C. § 1114(s) based on statutory housebound status. Because the Veteran has a 100 percent rating and was awarded special monthly compensation (SMC) based on housebound status for the periods from August 18, 2016 to September 30, 2016 and December 12, 2018 to April 1, 2019, those periods are not on appeal. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008). However, for the remaining periods outside of the temporary total evaluations, the Board has considered whether TDIU is warranted. See Bradley (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation based on receipt of service connection for a disability with a 100 percent evaluation and another with a separate 60 percent evaluation). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the evidence does not show that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran has not specifically contended that he has been unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Rather, he has indicated that he had to resign from his previous job as a background investigator because his toes would hurt at the end of the day due to the amount of walking he had to do for that job. He also indicated that he had problems with his feet, hips, and knees due to the extensive walking as well. See, e.g., February 2016 substantive appeal and December 2019 Board remand; November 2014 VA treatment record (reported walking extensively as part of his job, five or more miles a day) and October 2016 VA examination report. The record shows that the Veteran retired from military service as an administrative officer/legal officer for Navy recruiting after over 23 years of service, having previously performed in various other administrative management field roles during his service. He earned a bachelor of science in business administration while in service, and he also completed various trainings, including United States Department of Labor legal secretary and office manager apprenticeship programs. Following service, he worked in the background investigator position noted above from March 2011 to December 2015. On a June 2016 vocational rehabilitation and employment (now veteran readiness and employment) (VR&E) rehabilitation needs inventory form, he indicated that he had been working in outreach ministries during his period of unemployment, and he described the transferable skills he may be able to use in a new job as management, administrative, interviewing, computer, and instructional. He also noted that it would be possible for him to return to work in a former occupation or for a former employer. See also performance reports in service personnel records and resume in VR&E folder detailing duties. In a June 2016 VR&E counseling record report, it was noted that the Veteran denied applying for or currently receiving Social Security Administration disability. Thereafter, the record shows that the Veteran pursued new employment and now works in human resources at Naval Air Station Jacksonville. See, e.g., VR&E counseling record reports from July 2016 (reported in the process of being hired as a correctional officer and another job opportunity; indicated would call back in a couple weeks or earlier if he wanted to pursue VR&E services) and September 2016 (case closed); VA treatment records from August 2016 (Veteran requested completion of 35-day convalescent leave letter for work), April 2017, and January 2019 (noted Veteran working in human resources job). During the May 2018 VA foot examination, the Veteran indicated that he performs office work to avoid weight-bearing due to pain in his feet. During the April 2020 VA toenails examination, he reported that he had to leave a high paying job, taking a lower paying sedentary job to avoid prolonged standing and walking. The AOJ attempted to obtain information for this claim, but he did not return the requested information. See December 2019 and February 2020 AOJ letters (request for completed TDIU application (VA Form 21-8940) and employer information). The record does show that the Veteran has functional impairment due to his foot, great toenail, and left hip disabilities that affects his ability to work in jobs with significant physical requirements, such as prolonged standing and walking. However, to the extent that the October 2016 cervical spine and hip Disability Benefits Questionnaire (DBQ) evaluation reports submitted by the Veteran indicate that he “cannot work,” without more, these reports are inconsistent with the remainder of the record on the question of non-physical work, including the Veteran’s own reports. In addition to the examples cited above, an August 2016 Jacksonville Naval Hospital treatment record from around the same time shows that the Veteran reported that his cervical spine symptoms had been going on for some time, and that his limitations were related to working out, as he was used to having hard workouts that he could not do at that time due to the pain. The record also does not reflect nor does the Veteran contend that his other service-connected disabilities have resulted in unemployability. The Veteran undoubtedly had industrial impairment as a result of his service-connected disabilities, as evidenced by the 80, 90, and 100 percent evaluations. However, the evidence does not establish that his service-connected disabilities alone preclude gainful employment. The Board acknowledges the Veteran’s reported difficulties with physical jobs, including prolonged standing and walking; however, he has maintained employment for essentially the entire appeal period, pursuing employment opportunities in the time in between jobs. In addition, there is affirmative evidence that his education, training, and work history have allowed him to successfully transition to non-physical post-service employment to help him with the difficulties presented by his service-connected disabilities. The Board notes that “[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.” 38 C.F.R. § 4.1; see also Van Hoose, 4 Vet. App. at 363 (noting that the disability rating itself is recognition that industrial capabilities are impaired; the record must reflect some factor which takes the case outside the norm) and 38 C.F.R. § 4.15. On review of the record, the Board finds that the disability evaluations assigned under the VA Schedule for Rating Disabilities accurately reflect the Veteran’s overall impairment to his earning capacity due to his service-connected disabilities. Based on the foregoing, the Board finds that the requirements for a TDIU have not been met. Therefore, the Board finds that the weight of the evidence is against the Veteran’s claim. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Postek, 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.