Citation Nr: 21024195 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-22 130 DATE: April 22, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from August 1970 to January 1972. 2. The Veteran’s service-connected flat feet do not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU has not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In July 2017, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. A TDIU may be assigned, if the scheduler 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran did not at any point have a 100 percent rating, a single disability ratable at 60 percent or more, or at least one disability ratable at 40 percent or more with a combined rating of 70 percent or more. Rather, he is service connected for bilateral pes planus at 50 percent. He is not currently service connected for any other disabilities, and as such, his highest combined rating is 50 percent, and he does not meet the schedular criteria for TDIU and the appeal is denied. Nonetheless, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for a TDIU, the case may be referred to the Director, Compensation Service (Director) for consideration of assignment of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). However, the evidence does not support that his disability picture was so exceptional that the case should be submitted to the Director for extraschedular consideration. The Veteran’s employment history, his educational and vocational attainment, and his particular physical disabilities are to be considered in making a determination on unemployability. To that end, the Veteran has reported that he completed four years of high school. He indicated that he last worked in 1975 as welder. He reported that he was unable to work due to his service-connected bilateral pes planus and his nonservice-connected bilateral lower extremity peripheral neuropathy. In this regard, the functional impact of his bilateral pes planus disorder was assessed by several examiners. Specifically, a November 2012 VA examiner found that the Veteran’s bilateral pes planus impacted his ability to work in that he had difficulty with duties involving prolonged standing or walking without proper footwear and he required breaks for sitting every 30 minutes. However, the examiner noted that sedentary duties should not be affected. While the examiner did not specify which sedentary duties could be performed, it is reasonable to conclude that these would include computer work, filing, or other duties that do not require prolonged standing or walking, such as dispatcher or telephone operator. Further, a May 2016 VA examiner found that the Veteran’s bilateral pes planus disability did not impact his ability to work. On the other hand, a January 2017 Disability Benefit Questionnaire (DBQ) received from the Veteran reflected neuropathy and bilateral pes planus impacted his ability to work. The clinician reflected that the neuropathy was a result of a thermal burn in service and exposure to extreme cold temperatures. The clinician noted that the Veteran had trouble walking and wearing shoes and could not walk or even sit without having pain. However, less probative value is assigned to the January 2017 opinion. Significantly, despite the clinician’s characterization that neuropathy is related to service, the Veteran is not service connected for neuropathy of the feet. He filed a claim for neuropathy of the feet which was denied in 2009 and not appealed. His only service connected disability is flat feet. While the clinician included flat feet as a diagnosis, it is clear that the focus was on the impact of neuropathy on the Veteran’s ability to work. It is reasonable to conclude that the January 2017 clinician’s findings of nerve pain causing weakness resulting in an inability to walk or sit without pain is related to the diagnosis of nonservice-connected neuropathy and not to the service connected flat feet. As such, the weight of the VA and private treatment records do not reflect an exceptional disability picture as would be required referral to the Director of Compensation. Specifically, treatment records do not show that the Veteran was frequently hospitalized or missed days of work due to service-connected flat feet. The record also suggests that the Veteran is in receipt of Social Security Administration (SSA) benefits but that the SSA medical records were destroyed. In October 2012, the RO requested the SSA disability records. That same month, SSA responded that the records had been destroyed. In October 2012, the RO notified the Veteran that his SSA records could not be located and requested that he submit any relevant documents in his possession. He did not submit any information pertaining to his SSA disability records. Following another request for medical records, SSA National Records Center in April 2016 indicated that the medical records had been destroyed. Having reviewed the record, the Board concludes that it is reasonably certain that the SSA records no longer exist and further efforts to attempt to obtain them would be futile. See 38 C.F.R. § 3.159(c) and (e). Further, while findings from SSA would constitute probative evidence with respect to a TDIU claim, they are not dispositive or binding on VA. SSA’s legal criteria for assessing disability for SSA benefits purposes differs in important respects from VA’s own framework for determining entitlement to TDIU. Specifically, SSA bases disability on a claimant’s residual functional capacity, and whether there is substantial gainful activity that could be performed with that residual functional capacity. A VA claim for a TDIU focuses on unemployability based on impairments caused only by service-connected disabilities. Also, unlike SSA, VA does not consider age in making its determination. The Board has considered the Veteran’s statements regarding his capacity to work. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16. Such competent evidence concerning the nature and extent of the Veteran’s employability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the impact of the Veteran’s service-connected disability on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s lay statements, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.