Citation Nr: 21032157 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 03-01 662 DATE: May 26, 2021 ORDER Entitlement to a total disability rating based on individual employability due to service-connected disability (TDIU) is denied. FINDING OF FACT The weight of the evidence shows that the Veteran's service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1978 to March 1979. The Veteran appealed a July 2019 decision of the Board of Veterans' Appeals (Board) to the United States Court of Appeals for Veterans Claims (Court) to the extent that the Board denied entitlement to a TDIU. Pursuant to a Memorandum Decision, the Court, in a September 2020 Order, vacated the Board's July 2019 decision (as to the matter of entitlement to a TDIU) and remanded the matter to the Board to ensure that adequate reasons or bases are provided to the Veteran. Entitlement to a TDIU Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). VA regulations provide that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining whether there is a single service-connected disability rated as 60 percent, disabilities of a common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities are bilateral foot callus condition, rated 10 percent from March 2000, 30 percent from November 2008, and 50 percent from August 2014; and, recurrent epistaxis with a noncompensable rating from March 2000. The Veteran's combined disability rating for his service-connected disabilities are 10 percent from March 2000, 30 percent from November 2008, and 50 percent from August 2014. See generally 38 C.F.R. § 4.25, Table I - Combined Ratings Table. Therefore, he does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). It is the established policy of VA 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. 38 C.F.R. § 4.16 (b). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). This case has not been referred for extraschedular consideration. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment that exceeds the poverty threshold for one person. The noneconomic employment requires consideration of a number of factors, including the frequency and duration of periods of incapacity or time lost from work due to disability, the veteran's employment history and current employment status, and the veteran's annual income from employment, if any. See Ray v. Wilkie, 31 Vet. App. 58 (2019). The Veteran asserts that his service-connected disabilities prevent him from engaging in substantially gainful employment. The Veteran's April 2017 TDIU application listed a bilateral foot condition as the disability that prevented substantially gainful employment. He asserted that his disability affected full-time employment since August 1987, the last time he reported working full-time. He stated that he stopped working in August 1987 due to his bilateral foot condition. He noted that he worked part-time as a janitor from 2002 to 2014. He completed 10th grade. In May 2017, the Veteran's former janitorial employer from March 2003 to January 2014 stated that the Veteran quit and that she was not aware of any time lost during the preceding 12 months due to a disability. An August 1986 Social Security Administration (SSA) benefits application noted that the Veteran's disabling conditions included high blood pressure, a left knee injury, and arthritis of the left leg. The Veteran noted that he stopped working in August 1982 as he was unable to stand and walk for long periods due to his left knee injury. He underwent knee surgery in August 1982 and January 1985. He reported monthly treatment by multiple doctors from 1982 to 1986 for his left knee injury. In November 1987, the Veteran was diagnosed with chronic schizophrenia and prescribed medication. The Veteran reported being chronically unemployed due to his schizophrenia. On his January 1988 application for SSA benefits reconsideration, the Veteran noted that he was unable to walk, bend, stand, or do any kind of work because of his left knee condition. Also, he noted that his psychiatric medication kept him from working. A September 2001 medical record that was submitted to SSA noted that the Veteran worked as a delivery man, but went on disability for psychiatric reasons. The Veteran noted that his psychiatric condition was so severe that he was unable to function at an employable level. He heard voices, was easily confused, had a poor memory, was uncomfortable around others, and did not follow directions. The Board notes that while SSA determinations are not binding on the Board, they are, however, relevant and are probative evidence specifically in consideration of the Veteran's claim for TDIU. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA recognition of disabilities and SSA decisions are not binding on VA). The Board notes that the Veteran is not service connected for a left knee condition, high blood pressure, arthritis of the left leg, or a psychiatric condition. The Veteran underwent a VA examination in November 2008. He reported having "increased pain with dress shoes, or any type of rigid conforming footwear." The Veteran complained of pain when standing and walking, as well as swelling while standing. He also reported experiencing burning and spasms. The Veteran noted that he worked in a clothing warehouse in 1980, as a delivery driver in 1981, as a laundry attendant in 1996 and 1997, and that he currently worked part-time as a custodian. The examiner noted that the Veteran's condition had significant effects on his occupation and that it resulted in decreased mobility and pain. The examiner also noted that the Veteran's condition impacted his activities of daily living, to include an altered gait. In July 2010, the Veteran submitted a statement describing the severity of his pain associated with his foot condition, as well as the resulting interference with his employment. The Veteran noted that his pain was eight on a scale from one to ten, and that three times a week, he was unable to walk on his feet and that his feet were really sore. He stated that he had to sit down to work. The Veteran noted that he could not be on his feet for a long period of time because his feet started to hurt. The Veteran underwent another VA examination in November 2012. He reported that his foot calluses were painful and that he had them regularly shaved. He described the calluses as being "real sore." The Veteran stated that he could not be on his feet for very long and walking was limited to five to eight minutes due to the painful calluses. He reported using orthotic inserts. The examiner indicated that the Veteran's avoidance of prolonged walking impacted his ability to work. He conveyed to the examiner that he had been employed as a part-time custodian for the past 10 years. The examiner also determined that the Veteran's hammer toes and degenerative arthritis of the feet were unrelated to the bilateral calluses. The Veteran underwent a VA examination in August 2015. He stated that his feet become sore and tender when walking. Walking was limited to approximately one block. He also reported being unable to remain on his feet for any duration due to the calluses. They were regularly shaved by a podiatrist. The examiner found pain on use and accentuated of both feet. There was pain on manipulation and swelling. The examiner assessed the Veteran's bilateral foot condition as moderate in severity. Pain was present in both feet. The examiner commented that the bilateral foot condition impacted the ability to perform occupational tasks due to avoidance of prolonged walking or standing. In August 2015, during a general VA medical examination, the Veteran noted that he injured his left knee in the 1980s when he fell off a truck at work. He reported multiple surgeries to fix his damaged cartilage. He reported occasional left knee pain approximately three times a week. He noted that it affected his daily activities as he was no longer able to move like he used to. He stated that he was diagnosed with sleep apnea in the 2000s and that he was tired during the day and must nap daily. The Veteran reported that he developed carpal tunnel around 2009 and that his right wrist locked which prevented him from doing some chores. He noted back pain that affected his ability to perform chores. The Veteran's recreation activities included bingo, watching television, listening to the radio, and walking through stores. He stated that he retired in 2013 as he received SSA disability benefits for his mental health condition. He applied to be a driver, but he did not want to have his sleep apnea condition reevaluated. A November 2016 VA psychiatry assessment noted that the Veteran had occasional auditory hallucinations. He was diagnosed with schizophrenia, chronic paranoid type and three psychotic medications were noted. In January 2017, the Veteran reported back pain as an 8/10 in severity. He noted that he was last employed a janitor although he was not currently working. He stated that he worked as a delivery driver in the 1980s, but underwent left knee arthroscopic surgery and was on SSA disability benefits. In March 2017, the Veteran underwent his most recent VA examination of his feet. The examiner recorded the Veteran's complaint of chronic foot pain, and noted pain was accentuated on use and on manipulation. The calluses were noted on both feet along with swelling. The examiner stated that the Veteran's bilateral foot condition functionally impacted the Veteran's ability to work, though he could perform sit down work. In July 2017, the Veteran stated that he could not perform duties of his previous occupation as a janitor as it required a lot of standing and walking. An August 2017 VA treatment note indicated that he continued to have left knee pain and that he needed a cane to ambulate. Also, in August 2017, the Veteran reported auditory and visual hallucinations that lasted for a few days. He reported that his active medical issues were diabetes mellitus type 2, high blood pressure, sleep apnea, elevated cholesterol, degenerative joint disease of the knees and shoulder, as well as allergic rhinitis. The Board notes that the Veteran is not service connected for the above listed conditions. In August 2017, the Veteran underwent an examination for housebound status. The Veteran's disabilities included schizophrenia, hypertension, diabetes mellitus, chronic low back pain, flatfoot, rhinitis, and arthritis. The physician noted that the Veteran's schizophrenia restricted his ability to prepare meals, administer medications, and manage his financial affairs. The Veteran's gait was abnormal, which was attributed to osteoarthritis of his left knee and his lumbar disc disorder with stenosis. In October 2018, the Veteran underwent another examination for housebound status. The physician noted that the Veteran's family handled his finances due to his mental capacity. The Veteran noted that he had difficulty standing or walking due to foot pain. The physician noted that the Veteran had a poor memory and was unable to plan. The physician noted that no aids were needed for locomotion. In December 2018, the Veteran underwent a VA examination for conditions of the nose. He noted 3 to 4 nosebleeds per month. The VA examiner noted that the Veteran's service-connected recurrent epistaxis did not impact his ability to work. During his August 2019 examination for homebound status or permanent need for regular aid and attendance, the Veteran was found to have a normal gait. Disabilities that restricted activities/functions were left knee limitation of motion and mental health. He was found not to be able to prepare meals or bath/tend to hygiene needs due to his mental health disabilities and left knee disability. In June 2020, the Veteran complained of very painful callouses on the bottom of his feet. However, the Veteran reported no difficulty walking.A January 2021 private treatment note indicated that the Veteran's foot callouses and fungal toenails were very painful. He reported that did not walk much due to the foot pain, but was able to "walk about a block." Upon examination, the physician noted yellowed, thick, incurvated fungal nails bilaterally and midfoot collapse, antalgic gait with shortened stride. Here, the evidence of record does not establish that the Veteran is unemployable due solely to his service-connected disabilities. Regarding whether the Veteran is capable of performing the physical acts required by employment, the Board notes that there is evidence both for and against the claim. Weighing in favor of the claim are the Veteran's assertions that he is unable to maintain employment because of his service-connected bilateral foot calluses. Further VA examiners noted that the Veteran's service-connected bilateral foot calluses impacted his ability to work as his mobility was limited due to pain. In Withers v. Wilkie, the Court noted that VA has not explicitly defined the meaning of "sedentary employment." Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Id. at 149-150. Merriam-Webster online dictionary defines "sedentary" as (a) "doing or requiring much sitting" or (b) "not physically active." https://www.merriam-webster.com/dictionary/sedentary. The Board employs this definition in the current analysis for TDIU consideration. The Board finds that sedentary employment includes the common meaning in society of non-physical work that primarily requires sitting. Weighing against the claim are the findings of the November 2012, August 2015, March 2017, and December 2018 VA examiners, who opined that the Veteran's service-connected disabilities do not preclude him from sedentary employment. In that connection, the Board notes that all examiners thoroughly reviewed the Veteran's claims file, including his past medical and employment history and the statements offered by the Veteran. The Board notes that the Veteran stated in August 2015 that he retired in 2013 as he received SSA disability benefits for his mental health condition. Although, the Veteran's April 2017 TDIU application listed his service-connected bilateral foot condition as the disability that prevented substantially gainful employment, he noted in July 2010 that he performed his work sitting down as his feet were painful. Also, in May 2017, the Veteran's former part-time janitorial employer from March 2003 to January 2014 stated that the Veteran quit and that she was not aware of any time lost during the preceding 12 months due to a disability. In March 2017, a VA examiner stated that the Veteran's bilateral foot condition functionally impacted the Veteran's ability to work, though he could perform sit down work. In August 2015, the Veteran noted that he walked through stores as a way to exercise. In December 2018, a VA examiner noted that the Veteran's service-connected recurrent epistaxis did not impact his ability to work. In June 2020, the Veteran complained of very painful callouses on the bottom of his feet yet, the Veteran reported no difficulty walking. Further, all VA examiners opined that the Veteran could do sedentary work or sit down work based on his service-connected disabilities. Thus, the Board finds that the Veteran is able to perform non-physical work that primarily requires sitting even when considering his service-connected bilateral foot callus condition and recurrent epistaxis. Here, the Board concludes that the medical evidence does not establish that the Veteran's service-connected conditions, without consideration of any other, nonservice-connected disability, render the Veteran unemployable. In that connection, the Board notes that in the March 2017 VA examination report, his most recent examination for foot conditions, the VA examiner clearly stated that the Veteran was capable of performing sit down work, even considering his service-connected disabilities. The Board finds this evidence probative as it was based on a thorough review of the Veteran's claims file, including his past medical and employment history and the statements offered by the Veteran. Although the Veteran believes that he cannot secure or follow a substantially gainful occupation primarily as a result of his service-connected bilateral foot callus condition, the Board finds that the more probative evidence is against the claim. The Board notes that, as a lay person, lacking in medical training and expertise, the Veteran cannot provide a competent, credible and probative opinion on a matter as complex as to what is the objectively shown functional impairment caused by the service-connected disabilities and what is the impact of those disabilities on his ability to attend to daily activities including capacity for occupational activities. Thus, while the Veteran's opinions and observations are competent evidence that has been given full consideration by the Board, the Board finds that his statements are not entirely consistent with the objective medical evidence regarding the nature and degree of limitation of the Veteran's service-connected disabilities as it pertains to the Veteran's capacity for gainful employment. The Board specifically finds that the evaluation of the actual functional impact of his disorders on the Veteran's capacity to engage in occupational activities from a clinical standpoint is a matter squarely within the realm of expert clinicians, and not lay expertise. In any event, any probative value of the Veteran's own conclusions is outweighed by that of the opinions provided by the more recent VA medical professionals, who reviewed the claims folder and found that the Veteran's service-connected disabilities did not render him incapable of obtaining and retaining employment. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence shows that Veteran's service-connected disabilities impair his earning capacity in civilian occupations. However, the combined disability rating compensates him for this impairment. See 38 C.F.R. § 4.1. The medical opinion evidence from all of the VA examiners essentially reflects that the Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation; the documented findings indicate that the Veteran continued to be able to perform sedentary work, even considering the symptoms of his service-connected disabilities. The Veteran noted that he was able to work part-time as a janitor and that he sat down to perform his work as walking and standing for prolonged periods of time hurt his feet. The Veteran noted that he worked in a clothing warehouse, as a delivery driver, and as a laundry attendant. In August 2015, the Veteran applied to be a driver; however, he did not want to have his non-service-connected sleep apnea condition reevaluated, so he withdrew his application. In March 2019, the Veteran's representative asserted that there was no evidence showing that the Veteran could maintain sedentary work due to lack of education or occupational history. Nevertheless, as noted above, the Veteran noted that he was able to work as a part-time janitor sitting down, as a laundry attendant for years, and that he was a driver in the past and that he recently applied to be a driver, but did not finish his application due to a non-service-connected condition. In other words, the Veteran's experience and training have been such that he has the skills to perform employment sitting down or in a sedentary environment. Because the evidence does not establish that the Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation, such as sedentary employment which in the common meaning in society of non-physical work that primarily requires sitting, the Board concludes that a TDIU is not warranted. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. The Board acknowledges, as stated above, that the Veteran's arthritis of the left leg, chronic low back pain, and flatfeet/arthritis of the feet caused him increased pain. However, the Board notes that the Veteran is not service-connected for arthritis of the left leg, including a left knee injury, a back condition, or flatfeet. Notably, the November 2012 examiner opined that the Veteran's hammer toes and degenerative arthritis of the feet were unrelated to the bilateral calluses. Further, as stated above, the Veteran noted that he stopped working in August 1982 as he was unable to stand and walk for long periods due to his left knee injury. In 1988, the Veteran noted that he was unable to walk, bend, stand, or do any kind of work because of his left knee condition. Additionally, the Veteran reported being chronically unemployed due to his schizophrenia, which is not a service-connected condition. An August 2017 examination for housebound status noted that the Veteran's schizophrenia restricted his ability to prepare meals, administer medications, and manage his financial affairs. The Veteran's gait was abnormal, which was attributed to osteoarthritis of his left knee and his lumbar disc disorder with stenosis. Also, his August 2019 examination for housebound status noted that the disabilities that restricted activities/functions were left knee limitation of motion and mental health. He was found not to be able to prepare meals or bath/tend to hygiene needs due to his mental health disabilities and left knee disability. A September 2001 medical record that was submitted to SSA noted that the Veteran worked as a delivery man, but went on disability for psychiatric reasons. The Veteran noted that his psychiatric condition was so severe that he was unable to function at an employable level. He heard voices, was easily confused, had a poor memory, was uncomfortable around others, and did not follow directions. At most it is evident that the Veteran's service-connected disabilities render him unemployable for manual labor that requires prolonged standing or walking, but not for sedentary work, defined here as the common meaning in society of non-physical work that primarily requires sitting. The Board is mindful that the Veteran has been unemployed since approximately 2014, beginning with him quitting as a part-time janitor. However, the fact that the Veteran is unemployed or has difficulty obtaining employment does not suffice. The Board thus concludes that the evidence of record weighs against a finding that the Veteran's service-connected disabilities, without regard to his non-service-connected disabilities, render him unemployable. 38 C.F.R. §§ 3.341(a), 4.16(a). (Continued on the next page) In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.