Citation Nr: 21022312 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-17 991 DATE: April 15, 2021 ORDER Entitlement to a rating in excess of 40 percent for residuals, right talus fracture, is denied. Entitlement to a TDIU for the period from November 19, 2019 to February 29, 2020 is denied. Entitlement to a TDIU for the period prior to November 19, 2019 and from March 1, 2020 is denied. FINDINGS OF FACT 1. For the period prior to November 19, 2019 and from March 1, 2020, the Veteran is in receipt of the maximum schedular rating for his right ankle disability. 2. For the period from November 19, 2019 to February 29, 2020, the Veteran had a total rating for residuals, right talus fracture, and the record does not show that his remaining service-connected disabilities rendered him unemployable. 3. For the periods prior to November 19, 2019 and from March 1, 2020, the Veteran’s service-connected disabilities are not shown by the competent medical evidence of record to result in an inability to obtain or maintain substantially gainful employment so as to warrant referral of a TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 40 percent for residuals, right talus fracture for the period prior to November 19, 2019 and from March 1, 2020, have not been met. 38 U.S.C. § 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.71a, Diagnostic Code 5003-5270 (2020). 2. The criteria for TDIU for the period from November 19, 2019 to February 29, 2020, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2020). 3. The criteria for TDIU for the period prior to November 19, 2019 and from March 1, 2020 have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1954 to August 1957. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, these issues were remanded by the Board for further development. The Veteran testified before the Board at a May 2019 hearing. A transcript of the hearing is of record. In a March 2021 letter, the Board notified the Veteran that the Veterans Law Judge who conducted the hearing was no longer available to participate in his appeal and offered him the opportunity for a hearing before a different Veterans Law Judge that would decide his case. The Board informed the Veteran that, if he did not respond within 30 days from the date of the letter, it would assume he did not want a new hearing. The Veteran did not respond to that letter, and he has not otherwise requested a new hearing. Based on the foregoing, there is no outstanding hearing request. The undersigned Veterans Law Judge has, however, considered the transcript from that hearing in making this decision. Factual Background The Veteran underwent a VA examination in July 2012. It was noted that the Veteran had a healed right ankle fracture with deformity and pain. The Veteran also had traumatic degenerative joint disease of the right ankle. The Veteran reported flare-ups as he had chronic ache that was deep into the ankle which increased with walking or standing. He used over the counter medication, a cane and used to use a brace to help alleviate the symptoms. Right ankle plantar flexion was from 0 to 25 degrees and dorsiflexion was from 0 to 10 degrees. The Veteran was able to perform repetitive use testing and had limitation after repetitive use as there was less movement than normal, deformity and interference with sitting, standing and weight bearing. There was also grossly large bony medial and lateral malleolus joint prominence. There was pain on palpation. Muscle strength testing revealed active movement against some resistance (4/5) on right ankle plantar flexion. The Veteran had ankylosis as plantar flexion was less than 30 degrees on the right ankle and in dorsiflexion was between 0 and 10 degrees. The Veteran constantly used a cane. The examiner found that the Veteran’s right ankle disability did not impact the Veteran’s work. Per the November 2019 Board remand instructions, the Veteran underwent a VA examination in January 2020. The examiner noted that in November 2019, the Veteran underwent a pantalar fusion of the right ankle and that he was healing satisfactorily. The Veteran reported that he was advised to keep his right ankle elevated constantly and that he needed help in order to leave the house even to get the newspaper as he needed to use both hands for the rights-sided walker-boot in order to keep weight off of the right ankle status post fusion. The right ankle swelled with increased right sided walker-boot use but decreased with elevation. E did not report flare-ups. There was no flexion or extension and there was also swelling and deformity. There was no muscle movement in the right ankle but there was no muscle atrophy. The Veteran’s right ankle ankylosis was in good weight-bearing position. The examiner found that there was not functional impairment of the right ankle such that no effective functioned remained other than that which would be equally well served by an amputation with prothesis. The Veteran’s right ankle impacted his ability to work as the Veteran was advised to keep his right ankle elevated constantly. He also needed to use both hands for the rights-sided walker-boot in order to keep weight off of the right ankle status post fusion. The right ankle swelled with increased right sided walker-boot use but decreased with elevation. He could not walk more than 1 block without worsening swelling of the right ankle. The examiner noted that since the Veteran was status post right ankle pantalar fusion, he was still entirely non-weightbearing and was pending a specialist’s follow-up in January 2020 when they may or may not remove the right ankle boot and discontinue his use of the right knee scooter. His current functional loss was 100 percent while he used the scooter. He still had use of his toes which will aid him in balancing once he was permitted to weight bear again. He was not currently experiencing any right ankle pain or flares of right ankle pain but this might change when he was permitted to weight bear again. The examiner indicated that the Veteran’s residuals of the right ankle fracture are not considered the functional equivalent of “loss of use”. The Veteran would theoretically be able to work if he had a sedentary job which allowed him to work from home with his right knee elevated. He could not travel more than 1 block without worsening swelling of his right ankle. A June 2020 VA treatment report noted that the Veteran was fully ambulatory with a steady gait. Within the past 12 months the Veteran had not had any falls. On an October 2020 VA podiatry consult, the Veteran reported that he had been doing well overall and had very little to no pain at the ankle. Increased Rating Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2020). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his right ankle disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record and are probative for resolving the matter on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. The Veteran filed a claim for an increased rating that was received by VA in January 2012. Currently, the Veteran has a 40 percent disability rating for his right ankle disability under Diagnostic Codes 5003-5270. Notably, an August 2020 rating decision granted a temporary total convalescent 100 rating for the Veteran’s right ankle disability from November 19, 2019 to February 29, 2020 and continued the 40 percent rating from March 1, 2020. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Codes 5003-5270 were not changed. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2020). Diagnostic Code 5010 pertains to degenerative arthritis; Diagnostic Code 5271 pertains to limitation of ankle motion; and Diagnostic Code 5270 pertains to ankylosis of the ankle. Under Diagnostic Code 5270, a minimum 20 percent rating is assigned for ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle where plantar flexion is fixed between 30 and 40 degrees, or dorsiflexion is fixed between 0 and 10 degrees. A maximum 40 percent rating is warranted where plantar flexion is fixed at more than 40 degrees, or where dorsiflexion is fixed at more than 10 degrees with abduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. While the Board notes that Diagnostic Code 5271 was revised effective February 7, 2021, neither the old criteria nor revised criteria under Diagnostic Code 5271 provide for a rating in excess of 20 percent based on limitation of motion of the ankle. Normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Analysis Considering the pertinent facts in light of applicable rating criteria, the Board finds that an evaluation in excess of 40 percent is not warranted for the Veteran’s right ankle disability. The Board again notes that the current 40 percent disability evaluation for this period is the schedular maximum for Diagnostic Code 5270. As a result, an evaluation in excess of 40 percent for this time period under this Diagnostic Code 5270 is not available. In DeLuca, supra, the Court held that VA’s review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. See 38 C.F.R. §§ 4.40, 4.45, 4.59. However, as the Veteran is receiving the maximum schedular rating allowable under the applicable diagnostic code, the aforementioned provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration. See Johnston v. Brown, 10 Vet. App. at 80, 85 (1997) (consideration of 4.40 and 4.45 is unnecessary where an appellant is in receipt of the maximum rating for limitation of motion). Additionally, the Board finds, that there are no objective clinical indications that his symptoms result in functional limitation to a degree that would support a rating in excess of the currently assigned rating under Diagnostic Code 5270, or any other applicable foot or ankle diagnostic code. Thus, the currently assigned disability ratings adequately contemplate any functional loss occasioned by pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Other potentially applicable diagnostic codes include 5272 (ankylosis of the subastralgar or tarsal joint), 5273 (malunion of the os calcis or astralgus), and 5274 (astralgalectomy). 38 C.F.R. § 4.71a, Diagnostic Codes 5272, 5273, and 5274. As the Veteran has not been shown to have these disabilities at any time during the appeal period, these Diagnostic Codes cannot serve as a basis for an increased rating in this case. The Board also notes that the Veteran is not entitled to an increased disability rating under Diagnostic Code 5056 because he has not had a right ankle replacement. Additionally, at no point has a clinician, private or VA, found the functioning of the Veteran’s right ankle to be so diminished that amputation and use of prosthesis would equally serve him. Notably, both the July 2012 and January 2020 VA examiners specifically found that there was not functional impairment of the right ankle such that no effective functioned remained other than that which would be equally well served by an amputation with prothesis. Moreover, a disability rating in excess of 40 percent is not feasible, because under the provisions of 38 C.F.R. § 4.6, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. Thus, any further consideration under other Rating Schedule diagnostic codes for evaluation of the service-connected right ankle disability is not warranted. Notably, none of the diagnostic codes for evaluation of unilateral foot disability would provide for an evaluation in excess of 40 percent. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5283 (2020). The Board parenthetically notes that the Veteran’s representative in a December 2020 Appellant’s Brief argued that the Veteran should receive a compensable rating under Diagnostic Code 5002 as under 38 C.F.R. § 4.59, with any form of arthritis, actual painful joints are entitled to at least the minimum compensable rating. See also Petitti v. McDonald, 27 Vet. App. 415, 425 (2015) (“Under 38 C.F.R. § 4.59, the trigger for a minimum disability rating is an ‘actually painful, unstable, or malaligned joint.’“). In this case, however, the Veteran has already been assigned a compensable rating for painful motion under diagnostic code 5270. The assignment of this compensable 40 percent rating took into account the Veteran’s limitation of motion hampered by pain, as these symptoms were demonstrated by objective orthopedic testing on VA examinations. The Board emphasizes that pain, by itself, does not constitute functional loss. Rather, there must be actual limitation of motion that is caused by pain. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40 ). Therefore, a separate rating under Diagnostic Codes 5002 or 5003 is not warranted. Accordingly, the 40 percent rating assigned to the right ankle disability from February 7, 2015, is the maximum schedular rating allowable in this matter for the period prior to November 19, 2019 and from March 1, 2020. Accordingly, this appeal may only be granted if a higher rating is warranted on an extraschedular basis. The record does not support such a finding in this instance. Rather, the medical evidence establishes that the full scope of the Veteran’s reported symptomatology namely, chronic right ankle pain and swelling are contemplated by the applicable rating criteria. Moreover, the evidence does not show that the Veteran’s right ankle disability necessitated any hospitalizations aside from his right ankle surgery which resulted in a temporary total evaluation period for convalescence. In sum, the evidence does not reflect that the Veteran’s service-connected right ankle disability is so exceptional in nature as to not be fully contemplated by the rating schedule. Rather, there are no unusual clinical pictures presented, nor is there any other factor which takes the disability outside the usual rating criteria. Thus, even with the favorable resolution of doubt, the Veteran has not carried the burden of demonstrating that his right ankle disability is of such a nature that referral for extraschedular evaluation is warranted. 38 C.F.R. § 3.321 (b)(1); Thun v. Peake, 22 Vet. App. 111. Accordingly, as the preponderance of the evidence is against the claim for a rating in excess of 40 percent for a service-connected right ankle disability, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU Laws and Regulations A TDIU may be assigned when a 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. 38 C.F.R. § 4.16(a) (2020). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Even if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b) (2020). See also Fanning v. Brown, 4 Vet. App. 225 (1993). 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 and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) (1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1), as discussed above, is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran’s disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Additionally, the Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran’s claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. In a March 2014 statement, the Veteran reported that he was unemployable as a result of his service-connected disabilities. The Veteran noted that he did excavating work and was now unable to climb into his backhoe because of his ankle and hip. 1. Period Prior from November 19, 2019 to February 29, 2020 Regarding the period from November 19, 2019 to February 29, 2020, the Veteran’s service-connected disabilities were a right ankle disability at a 100 disability rating and tinnitus evaluated at 10 percent disabling. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Accordingly, although the Veteran could not get a TDIU for a right ankle disability or the combination of a right ankle disability and other service connected disabilities while that disability was rated 100 percent, he could get a TDIU on the basis of another service connected disability. Bradley v. Peake, 22 Vet. App. 280, 293 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2010) (“[A TDIU rating] that is based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of ‘a service-connected disability’ because that requirement must be met by a single disability.”). In the case at hand, there is no persuasive evidence that TDIU may be awarded independently of the Veteran’s right ankle disability for the period from November 19, 2019 to February 29, 2020. Specifically, there is no evidence for that period suggesting that the Veteran’s service-connected tinnitus prevented him from securing or following a substantially gainful occupation. Accordingly, the Board finds that a TDIU is not warranted for the period from November 19, 2019 to February 29, 2020 as the Veteran was not rendered unemployable by service connected disabilities without consideration of his service-connected right ankle disability. 2. Period prior to November 19, 2019 and from March 1, 2020 For the period prior to November 19, 2019 and from March 1, 2020, the Veteran is service-connected for a right ankle disability, evaluated at a 40 percent disabling and for tinnitus, evaluated at 10 percent disabling. The Veteran had a combined disability rating of 50 percent. As a result, for the period prior to November 19, 2019 and from March 1, 2020, the Veteran did not have one service-connected disability rated at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent, with one disability rated at 40 percent. As such, the criteria for a schedular TDIU under 38 C.F.R. § 4.16 (a) are not met. On review of the record, the Board finds that for the period prior to November 19, 2019 and from March 1, 2020, the Veteran was not unemployable by reason of his service-connected disabilities and that referral to the Director, Compensation and Pension Services, for extra-schedular consideration is thus not warranted. The Veteran has maintained that he is unemployable due to the effects of his service-connected disabilities. However, most probative evidence clearly demonstrates that the Veteran’s service-connected disabilities did not preclude all forms of employment for the period prior to November 19, 2019 and from March 1, 2020. Notably, the July 2012 VA examiner found that the Veteran’s right ankle disability did not impact his ability to work. However, on the most recent VA examination in January 2020, the VA examiner indicated that the Veteran’s right ankle disability impacted his ability to work as the Veteran was advised to keep his right ankle elevated constantly and needed to use both hands for the rights-sided walker-boot in order to keep weight off of the right ankle status post fusion. The Board notes that while the evidence of record does indicate that that Veteran’s service-connected disabilities interfered with employment that required physical exertion, they did not render the Veteran unable to obtain or maintain substantially gainful employment. As noted, the January 2020 VA examiner found that the Veteran’s right ankle disability impacted his ability to work as the Veteran was advised to keep his right ankle elevated constantly and needed to use both hands for the rights-sided walker-boot in order to keep weight off of the right ankle status post fusion. The right ankle swelled with increased right sided walker-boot use and the Veteran could also not walk more than 1 block without worsening swelling of the right ankle. However, the Board finds that the limitations noted by the VA January 2020 VA examiner specifically address the physical limitations surrounding potential employment and these physical limitations alone again do not necessarily mean that the Veteran is not able to secure or follow a substantially gainful sedentary occupation. Notably, the January 2020 VA examiner specifically indicated that the Veteran would theoretically be able to work if he had a sedentary job which allowed him to work from home with his right knee elevated. Additionally, more recent VA treatment notes further removed from the November 2019 ankle surgery and convalescence period demonstrated improvement as a June 2020 VA treatment report noted that the Veteran was fully ambulatory with a steady gait while on an October 2020 VA podiatry consult, the Veteran reported that he had been doing well overall and had very little to no pain at the ankle. In this regard, the Board is cognizant that the conclusion as to whether someone is unemployable is not a medical determination, but rather a legal determination. Thus, the Board has looked to the specific symptoms and manifestations of his service-connected disabilities, particularly with respect to those likely to cause practical functional impairment in an occupational setting. Here, while the Veteran was previously employed doing excavating work which is a position that involved physical labor and he has significant limitations with physical labor as evidenced by the January 2020 VA examiner’s findings, it cannot be said, based on the overall degree of disability, that the Veteran is precluded from other forms of substantially gainful employment due to his service-connected disabilities. While the Board is sympathetic for the restrictions that encompassed his service-connected disabilities, the evidence clearly demonstrates that the Veteran’s service-connected disabilities did not preclude all forms of employment. Additionally, the medical evidence does not contain an opinion that the Veteran’s service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment and the Veteran has not presented or identified any such existing medical evidence or opinion. Again, the central inquiry is whether the Veteran’s service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board concludes that the most probative evidence of record weighs heavily against finding that the Veteran’s service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. Accordingly, the Board finds that the preponderance of the evidence is against granting a TDIU and that referral for consideration of entitlement to TDIU on an extraschedular basis is not required for the period prior to November 19, 2019 and from March 1, 2020. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.