Citation Nr: 21023805 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 10-08 065 DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The most probative evidence of record is against finding that the Veteran’s service-connected disability (bilateral pes planus, i.e., flat feet) precludes him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria are not met for entitlement to a TDIU. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a) and (b), 4.18, 4.19.   REASONS AND BASES FOR FINDING AND CONCLUSION This claim was most recently before the Board in September 2018 when it was remanded back to the local Regional Office (RO) for a VA examination reassessing the severity of the Veteran’s service-connected disability (pes planus) – including its functional impact, and so the RO (Agency of Original Jurisdiction (AOJ)) could then readjudicate the claim consistent with a September 2017 Memorandum Decision of the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) that had vacated the Board’s prior September 2016 denial of this claim. There has been the required compliance – certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In April 2018, the Veteran, through his attorney, requested a hearing before the Board. However, in March 2021, the Veteran informed VA that he does not want a hearing. Accordingly, the Board considers his request for a hearing withdrawn and is proceeding with readjudication of the claim. See 38 C.F.R. § 20.704. The Veteran has only one service-connected disability, bilateral pes planus (flat feet), which is rated as 50-percent disabling. He therefore does not have a sufficient rating for this service-connected disability to be considered for a TDIU on a schedular basis under 38 C.F.R. § 4.16(a), because the rating must be at least 60 percent, and consequently would only be eligible for this benefit instead on an extra-schedular basis under § 4.16(b). Moreover, the Board would be precluded from assigning an extra-schedular TDIU in the first instance, having instead to refer the matter to the Director of the Compensation Service for this initial consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). However, it is incumbent on the Board to consider whether this referral is warranted. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. So, above and beyond that, there must be indication of inability to work in any substantially gainful capacity for a claim of entitlement to a TDIU to prevail. In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disability, alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Court has held that ”substantially gainful employment” contains economic and noneconomic components; the economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court also provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment, noting that attention must be given to: the Veteran’s occupational history, education, skill and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment also may be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. §§ 4.16(a), 4.18. VA cannot be compelled to use the Social Security Administration’s (SSA’s) or any other agency’s definition of sedentary work or sedentary employment. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018), and Rouse v. McDonough, No. 19-5699 (U. S. Vet. App. April 13, 2021). In deciding this appeal, as required, the Board has considered the history of the Veteran’s disability and concedes that the clinical records reflect his complaints of pain with prolonged standing. However, the Board also sees that his bilateral pes planus has not been shown by the most probative evidence to preclude many types of substantially gainful employment. Although the records over the last four decades do not necessarily reflect the current status of his feet during the pendency of his claim, they nonetheless are probative of the overall picture of his disability and whether it as likely as not precludes substantially gainful employment based on his level of education, prior training and work experience. Moreover, as already alluded to, the Board’s September 2018 remand of this claim was so the RO (AOJ) could have the Veteran undergo another VA examination reassessing the severity of his service-connected disability (bilateral pes planus) – including its functional impact – which, in turn, would assist the Board in determining whether he is entitled to a TDIU. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' 38 C.F.R. § 4.10 (2013), but it is the rating official who is responsible for' 'interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,' 38 C.F.R. § 4.2 (2013)." Indeed, the remand also was so the RO (AOJ) could then readjudicate the claim consistent with the Court’s September 2017 Memorandum Decision vacating the Board’s prior September 2016 denial of this claim. Reference to the Veteran’s disability is presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning his disability that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. Turning now to the relevant evidence, a September 1980 VA special examination report contains the opinion of the examiner (Dr. C.B.) that the Veteran “is prone to exaggerate the symptoms in his feet” and he is “physically able to do light work, particularly bench work, desk, or clerical job.” A March 1981 private clinical record (Dr. S.R.) reflects the clinician’s opinion that the Veteran could be trained to do clerical work where he would then be able to work while sitting down most of the day. A March 1981 VA Vocational record reflects that the Veteran had previously used the GI Bill once in the past in an abortive attempt to achieve an AA Degree but he received unsatisfactory progress in that 6.5 month attempt at an AA Degree, primarily because he did “not study at all”. He also reported that he is intimately involved in activities that “can best be described as illegal in order to ‘make a living’.” It was noted that he is a “wheeler dealer on the streets and is constantly looking for a deal here and there and has a pervasive anger against society in general. He can turn on charm and has a personality somewhat like the used car salesman he used to be, but underlying all of this is a smoulding [sic] hatred for everybody and everything.” It was noted that he is unable to secure employment in the area because he is probably “discriminated against on the basis of his [service-connected disability] and the fact that he cannot stand for prolonged periods of time.” It also notes that “he does not want to work in blue collar areas that essentially require him to get his hands dirty. In other words, he does not have or claims he does not feel he would be able to do much in the way of academics and his physical condition prevents many blue[-]collar areas from being selected. He seems to be best in using his moderate street knowledge for either fencing guns, chain saws, other stolen goods, drugs or girls – all of which he has freely admitted.” A March 1981 VA Vocational education record shows the Veteran has previously shown a serious and severe psychopathic personality with a definite indication of a violently explosive personality. The counselor declined to interview the Veteran anymore, considered whether to press charges of disturbing the peace, and found that he was infeasaible [sic] for Chapter 31 Vocational Rehabilitation Therapy (VRT) benefits due to his inability to control his psychopathic, angry personality, and comments about his illegal activities. Records dated in 1981 list a diagnosis of schizophrenic disorder, undifferentiated chronic. A May 1982 VA special orthopedic examination report (Dr. I.F.) reflects that the Veteran “complains of various pains in his feet, back and knees. He states he is unable to work because of this discomfort”. (The Veteran is not in receipt of service connection for his back and knees.) It was further noted that he walks without a limp and with a good stride, and that he wears his shoes evenly on his heels and toes, indicating that he is walking without too much difficulty. The examiner stated that the fact that his shoes are so well-worn shows that he has been “doing a good deal of walking.” It was also noted that the Veteran “during the examination states bitterly that he is having a lot of pain and discomfort in his lower extremities, however, he says this with a straight face and no signs of any severe pain.” An August 1982 VA record reflects that the Veteran stands to gain financially by not having treatment for his feet. A June 1984 VA special examination report reflects that the Veteran demonstrates a “psychotic thought disorder which could be exogenously induced or endogenous. He also reflects a secondary gain.” In June 1991, the Veteran was found guilty of burglary and in July 1991, he was sentenced as a habitual violent felony offender to ten years imprisonment; he was released from state custody on June 30, 2000. An October 2004 VA record reflects that the Veteran reported back and neck complaints which cause discomfort with walking and any type of exercise after a bus accident in 2003. He reported that his pain limits him in many ways. A November 2004 record reflects that the Veteran reported spine pain, and that he had “studied law for nine years [while in prison]”, and was planning a lawsuit. The examiner noted that the Veteran’s “problem is psychiatric, not orthopedic.” A June 2009 VA clinical record reflects chronic low back pain, chronic bilateral foot pain, and mental health issues among other assessments. As noted above, in determining whether the Veteran is entitled to a TDIU, his nonservice-connected disabilities may not be considered. In 2010, in support of his claim for a TDIU, the Veteran stated, “I have not been employed sense [sic] leving [sic] the military in 1977 because of my back, feet and knee injuries”. As noted above, the Veteran is not in receipt of service connection for his back and knees. A November 2011 VA clinical record reflects that the Veteran had a normal gait, and declined to take off his shoes to be examined. The May 2019 Disability Benefits Questionnaire (DBQ) completed on remand indicates the Veteran reported that he cannot stand for “prolonged” periods of time. He complained of “pain bilaterally with weight bearing” and “constant pain of walking on [his] feet”. Upon examination, he had bilateral pain on use, and on manipulation, and had swelling on use. He did not have characteristic calluses. He reported that arch supports did not relieve his pain. He also had extreme tenderness on the plantar surfaces of both feet that he said was not improved by orthopedic shoes or appliances. He did not have decreased longitudinal arch height, marked deformity, marked pronation, other deformity, or other symptoms of a foot disability. The report reflects that he had pain on weight bearing, but he did not have pain on non-weightbearing. The report explains his functional impairment was “constant feet pain after walking for too long or standing.”   The claims file also includes a March 2020 VocRehab Consulting record submitted by the Veteran containing the opinion of the counselor (P.M.) that the Veteran’s bilateral pes planus precludes sedentary, light, medium, and heavy-duty work. She notes that sedentary jobs would involve a certain amount of walking, that standing is often necessary in carrying out job duties, and that his flare-ups of pain require him to lie down for hours each day with little reported relief. She also stated that his chronic pain causes him to have difficulty focusing and difficulty with sleep. She found that his lack of work experience and his limited education (high school diploma) do not result in transferable skills and would significantly limit what jobs, if any, for which he would qualify. However, despite that assessment of that vocational examiner, the most probative evidence does not support the notion that the Veteran is precluded from substantially gainful employment because of his service-connected bilateral pes planus. This disability has not been shown by the most persuasive evidence to adversely affect his trunk or upper extremity movements. He still can sit, grasp, type, and reach for things. He also does not have auditory or visual limitations due to his pes planus. The Veteran’s work experience and level of education are factors in determining his employability; however, there are jobs that he realistically would be able to do even with his relatively limited work experience and level of education and noting that he would need to sit for the majority of the day. For example, he could be a landscaper (using a riding mower), a truck driver, or a bus driver, all of which would allow for him to sit. If using the pedals caused too much pain, he could perform a job that would not require that movement, such as a receptionist, cashier, telephone marketer, bank teller, or customer service representative, all of which can be done sitting down and do not require use of his feet – certainly not for a prolonged or extended period of time. Moreover, the Board does not find a reason why these jobs would not allow him to rest his feet on a cushion, move around when necessary, or adjust his position.   Although vocational counselor, P.M., opined that the Veteran’s chronic pain has led to his inability to sleep well and concentrate/focus, the May 2019 DBQ clarifies the Veteran had pain on “use” of his feet – such as during prolonged standing and not, instead, in a non-weight-bearing situation. In other words, it is only when he is up on his feet, especially for long periods of time, when his pain and other symptoms are problematic. No competent clinician has found that the pes planus as likely as not causes sleep disruption when the Veteran’s feet are in a non-weight-bearing position and not being used. Moreover, P.M., without a professional degree in psychology or psychiatry, has surmised that the Veteran’s psychological factors from his bilateral pes planus affect his ability to be gainfully employed. But P.M. has not been shown by her curriculum vitae (CV) to have the experience, training, or education necessary to make such a finding given the Veteran’s acquired psychiatric disability previously noted and the fact that it has not been attributed to his military service – either directly, presumptively, or secondarily by way of his service-connected bilateral pes planus. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As well, the Board has considered the Veteran’s personal lay assertions of being unable to attend to his basic activities of daily living due to his chronic foot pain, that he needs to lay in bed the majority of the day (he did not adequately explain why he cannot sit for the majority of the day), takes only quick showers (he did not explain why he could not use a chair in the shower), and that flare-ups will require days or weeks from which to recover. But, again, if he has a job that does not require prolonged standing or walking, it is unlikely that he would have a flare-up. His statements to counselor P.M. of constant pain, including when not weight-bearing and while trying to sleep, are not credible as the clinicians who have had occasion to evaluate him have not observed such symptoms and consequent functional impairment (despite several examinations). He had reported pain with weight-bearing and prolonged walking, and/or at least four doctors over the last four decades contrarily have indicated he may be less than credible as to his symptoms and/or is more concerned with financial benefit than treatment. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant's testimony).   Dr. C.B. found the Veteran prone to exaggerate. Dr. I.J. found that the condition of the Veteran’s shoes indication he did a great deal of walking, also that he walked without difficulty, and he did not show severe pain on examination. Dr. J.T. observed the Veteran stands to gain financially, so he may not want to get surgical treatment for his feet. And Dr. J.H. noted the Veteran had a “secondary gain” and thought disorder. Thus, there is a pattern leading to the Board finding him less than credible when commenting on the severity of his bilateral pes planus – which he, in turn, related to P.M., so this resultantly tends to undermine the probative value of P.M.’s opinion since predicated on a level of disability that has been called into question. See Reonal v. Brown, 5 Vet. App. 458 (1993) (An opinion is only as good and credible as the history on which it was based). While the Veteran has mostly remained unemployed since separating from service, this is in part due to a lengthy period of incarceration and multiple disabilities, only one of which is service connected (i.e., he has previously claimed that his knees, back, and feet preclude employment). The most probative evidence in the record is against finding that his pes planus, alone, would be a preclusion to sedentary employment. Thus, a TDIU is not warranted, and the Board is not referring this claim to the Director of the Compensation Service. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.