Citation Nr: 21028037 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-22 507 DATE: May 10, 2021 ORDER Entitlement to service connection for right foot disability is denied. Entitlement to a total rating based on individual unemployability (TDIU) prior to July 29, 2016 is denied. FINDINGS OF FACT 1. The Veteran does not have a current right foot disability, beyond those for which he is already service-connected. The Veteran does not have underlying disease or injury involving the foot beyond that already service-connected. 2. Prior to July 29, 2016, the Veteran was not unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for right foot disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a total disability rating for compensation based on unemployability of the individual have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to August 1979 and July 1981 to July 1990. In December 2018, the Board remanded claims of service connection for right foot disorder, right ankle disorder, heart disorder and prostate cancer, as well as entitlement to a TDIU. The Agency of Original Jurisdiction (AOJ) subsequently granted the Veteran's right ankle claim and granted a TDIU effective July 29, 2016. Regarding the heart disorder and prostate cancer claims, the AOJ issued a supplemental statement of the case (SSOC) in October 2020. Later that month the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and opted into the modernized review system, also known as the Appeals Modernization Act (AMA), from the October 2020 SSOC. Therefore, the claims are no longer before the Board and will not be addressed herein. 1. Entitlement to service connection for right foot disability The Veteran contends he has feet problems. See September 2010 application for compensation. As an initial matter, the Board remanded this claim so the AOJ could attempt to obtain medical records from Cedar Lake Medical Center. In a December 2019 letter, the AOJ requested the Veteran complete and return an authorization form that would permit it to obtain the records since 2000. In response, the Veteran's representative stated the Veteran currently receives all treatment through VA and has no further evidence to submit. See December 16, 2019 correspondence. The AOJ has substantially complied with the Board's directive, so we will proceed to adjudicate the Veteran's claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that the Veteran does not have a current right foot disability, beyond those for which he is already service-connected, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran is service connected for right lower extremity radiculopathy and right ankle lateral collateral ligament sprain. The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. However, the preponderance of the evidence of record is against finding that such impairment exists or had existed during the pendency of the claim. More importantly, Saunders addressed the presence of disability. It did not address the need for underlying disease or injury in a non-Gulf case. Neither the Veteran, nor his representative, has specified what right foot problems he is claiming beyond those that are already service connected. The record contains other references to non-specific feet problems, but without elaboration. See, e.g., July 2011 application for TDIU ("Feet problems") and October 12, 2017 ("Patient is still with problem with his feet, suspect gout with this elevated Uric acid"; but no specificity of the "problems"). Only in his claim for benefits from the Social Security Administration did he report chronic pain in back, knees and feet. See October 15, 2010 Functional Report. In a letter to the Social Security Administration, the Veteran's representative noted chronic left ankle pain, but otherwise made no mention of the Veteran's feet despite listing several medical impairments. See May 2011 letter, received July 19, 2011. Furthermore, neither the Veteran, nor his representative, have explained how any additional right foot problem is related to service. In his September 2010 application for compensation, the Veteran claimed, "Feet problems stress fracture [left] foot". In a statement submitted the following month, the Veteran wrote in a section labeled "Foot Problems", "I feel several things have contributed to my feet problems. Primarily my left foot . . ." He then went on to discuss his left foot. A review of the Veteran's medical records contains no specific complaint or treatment for an additional right foot disability disease or injury. The only additional right foot issue noted was a lesion on his right foot in August and September 2010. There was no pain on palpation of the lesion and the Veteran made no complaint. The Veteran attended a VA joints examination in August 2011. While the Veteran's left foot was discussed, there is no mention of complaint regarding his right foot. Additionally, the Veteran attended a VA foot examination April 2016. The examination was focused on the Veteran's left foot, but the examiner evaluated the Veteran's right foot, found no disability and wrote the Veteran did not report right foot pain. Similarly, in May 2019, the Veteran went to a VA podiatry clinic with left foot complaints, but made no mention of his right foot. His right foot was found to have no pain on palpation. See May 9, 2019 VA treatment record. Later that month the Veteran reported left ankle, foot and lower back pain for 10 years, but made no mention of his right foot. See May 28, 2019 VA treatment record. In light of the lack of specific complaint or treatment for a right foot disability beyond what is already service connected, the subsequent reporting of ankle issues to Social Security Administration (SSA), and the representative's May 2011 letter to SSA, the Board finds the Veteran report of feet pain to SSA in 2010 was a reference to his ankle disabilities. While the Veteran may believe he has an additional current right foot disability, this is inconsistent with the medical evidence of record that is consistently lacking in evidence of such a disability, disease or injury involving the foot. Furthermore, to the extent the Veteran has right foot pain, the findings of the April 2016 VA examiner are highly probative and of more weight than the statements of the Veteran, as it is more consistent with the evidence of record. In other words, the more probative evidence of record is against finding than any additional right foot problem reaches the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). Equally important, there is no identified underlying foot pathology. In light of the above, the preponderance of the evidence of record is against finding the Veteran has an additional right foot disability due to disease or injury. Accordingly, the first element of service connection does not exist and service connection must be denied. 2. Entitlement to a total rating based on individual unemployability (TDIU) prior to July 29, 2016 The Veteran asserts that he was unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities and is therefore entitled to a total disability rating for compensation based on individual unemployability. The Board need not address whether the appropriate period on appeal is from September 2, 2010 (date of initial service connection claim) or July 19, 2011 (date TDIU claim received) as a denial would result from either date. i. Applicable Law Total disability ratings for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is 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. §§ 3.340, 3.341, 4.16(a). It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16(b). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his 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, 363 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. Webster's II New College Dictionary (1999). ii. Evidence and Analysis - general Upon review of the evidence of record, the preponderance of the evidence of record is against finding the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities prior to July 29, 2016. Prior to July 29, 2016, the Veteran is service-connected for the following: unspecified depressive disorder (rated at 70 percent, from October 22, 2010); tinnitus (rated at 10 percent, from September 2, 2010); bilateral hearing loss (noncompensable, i.e. 0 percent); lumbar stenosis with degenerative joint disease (rated at 10 percent, from September 2, 2010); left lower extremity radiculopathy (rated at 10 percent, from September 2, 2010); right lower extremity radiculopathy (rated at 10 percent, from September 2, 2010); right knee degenerative arthritis (rated at 10 percent, from September 2, 2010), right knee surgical scar (noncompensable, i.e. 0 percent); right ankle lateral collateral ligament sprain (rated at 10 percent, from October 22, 2010); left ankle degenerative arthritis (rated at 10 percent, from October 22, 2010); left medial ankle scar (noncompensable, i.e. 0 percent); left foot degenerative joint disease of the midfoot and hindfoot with synovial cysts (rated 10 percent from September 2, 2010, except a temporary total disability rating from October 12, 2010 through November 30, 2010). For the period of October 12, 2010 through November 30, 2010, the Veteran was assigned a temporary total rating for his left foot degenerative joint disease disability. See Bradley v. Peake, 22 Vet. App. 280, 292 (2008) (HN5 it is possible for a veteran to receive "TDIU for a single disability and thereafter be awarded disability ratings for other conditions," resulting in no duplicative counting of disabilities). The Board notes the Veteran has numerous nonservice-connected disabilities (coronary artery disease status post myocardial infarction and quadruple bypass surgery, chronic kidney disease, etc.), has a general education diploma (GED), and previously worked as a service technician and worked in construction, maintenance and car repair. See July 2011 TDIU application, and letter from Veteran's representative received July 19, 2011. iii. Evidence and Analysis Period from March 19, 2012 to July 28, 2016 The Veteran worked full-time, for one employer, from March 19, 2012 to July 28, 2016. See September 2016 TDIU application and September 2020 VA Form 21-4192 from employer. The Veteran does not contend, and the evidence does not indicate, this work was in a protected environment or otherwise constituted marginal employment. See 38 C.F.R. § 4.16(a). Therefore, the preponderance of the evidence of record is against finding the Veteran was unable to secure or follow a substantially gainful occupation during this time. iv. Evidence and Analysis Period prior to March 19, 2012 In a May 2011 letter, the Veteran's representative contends the Veteran last worked in February 2010 and was fired because of the inability to perform the job due to his medical conditions. The Veteran has also reported being fired a number of times because of his temper and hollering. See May 14, 2010 VA treatment record. The record does not contain a statement from the Veteran's employer in February 2010, but an employer that the Veteran worked for in 2009 stated the Veteran never reported any disability, performed duties well, and quit to move to Florida. See VA Form 21-4192 received September 20, 2012. A review of the record reveals several opinions on the impact of the Veteran's disabilities on his ability to secure or follow a substantially gainful occupation. For the relevant period, only one medical professional opined the Veteran was unable to work. However, this clinician based their opinion on both service-connected and nonservice-connected disabilities. See April 15, 2011 letter from VA clinician, received July 19, 2011. Furthermore, a Social Security Administration (SSA) clinician opined the Veteran was able to work full-time, even when considering nonservice-connected disabilities. See December 14, 2010 SSA physical residual functional capacity assessment; see also November 17, 2010 SSA mental status examination and psychiatric review technique (finding psychiatric impairment is not severe). SSA did not find the Veteran to be disabled for SSA purposes until October 2016. In doing so, SSA relied on nonservice-connected disabilities while noting a worsening in the Veteran's physical conditions. See May 16, 2017 SSA disability determination and explanation. The Board notes that while SSA found the Veteran disabled for SSA purposes, it uses different standards than VA, e.g. SSA considers age. Nevertheless, the information provided by SSA and the opinions of the SSA consultative examiners are considered to be highly probative, in that even when considering nonservice-connected impairments the Veteran was found able to work during the relevant period. See 20 C.F.R. § 404.1505 (defining "disability" for SSA purposes). Examiners that have considered the Veteran's service-connected disabilities have consistently found that although the Veteran is limited by them but he can still work. For example, the Veteran attended a VA mental disorders examination in August 2011 and reported he was unable to work after January 2010. The examiner found the Veteran's symptoms to be moderate in severity and that they occur sporadically. The examiner also opined it is more likely than not that the Veteran is able to do desk work. Similarly, the Veteran attended a VA hearing loss examination in August 2011 and the examiner opined any employment setting that can control communication at distances or in the presence of competing noise would be suitable for the Veteran. Likewise, a VA examiner that considered ankle, knee and spine disabilities opined the Veteran can do desk work. See August 2011 joints examination report; see also January 2012 knee and leg examination (impact on work - pain with standing and squatting) and August 2011 general medical examination report (discussing nonservice-connected disabilities, opines Veteran is able to perform desk type work; diagnoses: hypertension, adenocarcinoma of the prostate with history of prostatectomy, and coronary artery disease with history of myocardial infraction and coronary artery bypass). Where relevant, the examiners noted medication and are thus found to have considered the effects of such medication in providing their opinions. No examiner has expressed an opinion specifically on the impact of the Veteran's service-connected bilateral lower extremity radiculopathy. The Veteran's radiculopathy is rated as mild bilaterally, based on pain and numbness. See April 2019 rating decision. A review of the record reveals that during this period the Veteran once reported left lower extremity radicular pain, but otherwise denied radiculopathy. See medical records dated March 2, 2010 (no radiation of pain) and November 17, 2010 (pain radiates down the left lower extremity with numbness and tingling in the leg; negative straight leg raise), and August 2011 VA joints examination (denies radiculopathy). The Veteran subsequently reported a history of bilateral lower extremity radiculopathy. In light of the evidence of record, including the Veteran's own reporting, radiculopathy was intermittent and there is no indication it would preclude the Veteran from securing or following a substantially gainful occupation, even when considered with his other service-connected disabilities. To the contrary, the Veteran's report of left sided radicular pain is included in the records provided by SSA, and SSA did not find the Veteran to be disabled during this time. Consideration has given to whether, when considered together, the Veteran's service-connected disabilities would preclude the ability to secure or follow a substantially gainful occupation. As discussed above, all medical professionals except one found the Veteran was able to work, and the clinician that provided that opinion considered nonservice-connected disabilities. The Veteran has several nonservice-connected disabilities and had heart attack followed by heart surgery in March 2011. Notably, as part of his application to SSA, the Veteran indicated his disabilities did not affect his ability to sit. See October 15, 2010 Functional Report (checked boxes for how his illnesses, injuries or conditions affect him, but did not check the box for sitting). Although the Veteran feels he was unable to secure and follow a substantially gainful occupation due to his service connected disabilities, the Board finds the medical evidence of record to be more probative, particularly the VA examiners that specifically considered the Veteran's service-connected disabilities. The examiners consider medical and lay evidence and concluded the Veteran was able to work. We are also presented with a factual inconsistency. Despite an argument of an inability to obtain and retain substantially gainful employment, the record establishes that he returned to such employment for a significant length of time. The lay evidence and argument that he was not capable of obtaining and retaining substantially gainful employment is not credible. The fact that he removed himself from employment for a period of time falls far short of establishing entitlement to a total rating for compensation on the basis of individual unemployability. In light of the above, the preponderance of the evidence of record is against finding the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities prior to March 19, 2012. Accordingly, entitlement to a TDIU, to include referral to the Director of Compensation Service, is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gregory T. Shannon, 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.