Citation Nr: 21041766 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-46 785 DATE: July 10, 2021 ORDER A 30 percent disability rating for residuals of a left foot fifth metatarsal fracture is granted. A 30 percent disability rating for residuals of a right foot fifth metatarsal fracture is granted. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's residuals of a fifth metatarsal fracture of the left foot are manifested by severe symptoms. 2. The Veteran's residuals of a fifth metatarsal fracture of the right foot are manifested by severe symptoms. 3. The Veteran's service connected disabilities do not render him unable to sustain substantial gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for residuals of a fifth metatarsal fracture of the left foot are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284. 2. The criteria for a 30 percent rating for residuals of a fifth metatarsal fracture of the right foot are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5284. 3. The criteria for TDIU are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from April 1979 to February 1983. In July 2019, the Veteran testified before the Undersigned during a hearing. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. 1. Fifth metatarsal fracture of the left foot 2. Fifth metatarsal fracture of the right foot The Veteran asserts that the residual impairments from his fifth metatarsal fracture in his left foot and the residual impairments from his fifth metatarsal fracture in his right foot each warrant a rating greater than 20 percent. Under Diagnostic Code 5284, for other foot injuries, a 30 percent rating is warranted for severe foot injuries. A Note to Diagnostic Code 5284 instructs that a 40 percent rating should be provided when there is actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The words "moderate" or "marked" are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. A 30 percent rating for each of the Veteran's service connected left and right foot disabilities is appropriate. The Veteran has gone to various VA examinations since his application for an increased rating. However, in all of those examinations, including one in June 2016 for his hip, the Veteran reported that his ability to walk and stand were limited. Despite, the pain, at a January 2016 examination, the examiner reported there was not functional loss during a flare up or when there was repeated use. The examiner opined the Veteran's foot impairment would not render him unable to function in a sedentary work environment. Similar to other examinations, at a December 2019 VA examination, the Veteran reported pain limited his ability walk and that going up and down curbs and stairs hurt. The Veteran asserted that his ability to walk was limited to for six minutes, if going slowly, and he could only stand for ten to fifteen minutes. The examiner concluded the same. The examiner stated that the pain in the Veteran's foot negatively affected the first metatarsal phalangeal and caused hallux valgus. The December 2019 VA examiner rated each of the Veteran's feet as having moderately severe disabilities. The Veteran's representative cited the December 2019 VA examination as evidence that the Veteran should be found to have a severe rating for both feet. The Board agrees. However, the Board does not find a 40 percent rating is warranted because the Veteran is still able to use his feet. Despite the Veteran's hearing testimony about not being able to use his feet, the Board finds that the record does not support this claim. All of his VA examinations and other medical records indicate that the Veteran does have use of his feet, although such use is limited The Veteran's representative asked for a second opinion to address the "true severity" of the Veteran's disability. While it is unclear what the representative meant by "true severity," the Board reasons that another evaluation is unnecessary because the Board agrees that the Veteran experiences flare ups. The Board gives the December 2019 VA examiner's opinion little weight when rating the Veteran's pain as moderately severe. The fact that the pain caused biomechanical changes so great as to cause hallux valgus, leads the Board to the conclusion that the disability is severe. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is in favor of a 30 percent disability rating for each foot, but no higher. Individual Unemployability 3. TDIU The Veteran seeks a TDIU. He contends that his various service connected disabilities render him unable to sustain substantial gainful employment. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: left fifth metatarsal fracture residuals, right fifth metatarsal fracture residuals, and bilateral hip and ankle limitations associated with respective metatarsal fracture residuals. Accounting for the bilateral factor, the Veteran had a 70 percent rating as of February 23, 2016 and was eligible for TDIU as of that date. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the following reasons, the Board finds that a TDIU is not warranted. The Veteran, born in October 1969, has not received any career training since he last worked in 2011 when he was a laborer. He completed one year of college. According to the September 2017 VA 21-4192 Request for Employment Information in Connection with Claim for Disability, a workplace accident rendered the Veteran unable to work. For VA purposes, the Veteran's ability to secure and maintain substantial gainful occupation is impacted by the physical effects of his service-connected disabilities. The Veteran's service connected disabilities greatly reduce the Veteran's endurance, but do not render him unable to walk, sit or stand. The Veteran admits that he can still stand for up to 15 minutes and can walk a few blocks or less than six minutes. In March 2013, according to a single decision maker (SDM), with unknown credentials, the Veteran is unable to walk, stand, or sit for more than 2 hours without a break. Moreover, the Veteran has additional postural and manipulative limitations. This opinion is given little weight because the SDM's credentials are unknown. Moreover, the opinion does not specifically associate limitations with any of the Veteran's service-connected disabilities. Since he was first eligible for TDIU, the Veteran was unable to engage in prolonged walking due to joint pain. According to a VA examination in May 2016, the Veteran's hip disabilities reduce his ability to walk and climb ladders. This was similar to the Veteran's reports in a May 2016 VA examination of his ankles. In July 2016, a VA examiner opined that his foot condition prevented him from prolonged walking, but the examiner did not find any other functional limitations. According to Social Security Administration (SSA) records, the Veteran takes oxycodone daily. However, medical records from May 2017, show that the oxycodone used was for his back, which is not a service connected disability. In November 2017, the Veteran reported that bad weather caused flare ups in his hips. The Veteran reported that he was unable to walk two blocks or stand for prolonged periods of time. At the time, the examiner reported the Veteran could not perform heavy, moderate, or light physical work, but made no mention of an inability to perform sedentary work. At a January 2018 VA examination, the examiner articulated that while the Veteran's ability to work in heavy physical labor is limited, the Veteran could function in sedentary employment. In May 2019, the Veteran could walk two blocks before brief rest was needed due to calf pain. While not quantified, the Veteran's walking distance was improving by October 2019. During a December 2019 VA examination, the Veteran reported residual pain, tenderness, swelling, and decreased weight-bearing as a result of the left and right fifth metatarsal fractures The examiner noted he was unable to stand for more than 10 to 15 minutes due to pain and experienced increased pain with walking and increased with use. The examiner reported that residuals of left and right fifth metatarsal fracture resulted in moderately severe limitations. The Veteran's representative stated that the Veteran's ability to perform tasks related to substantial gainful employment were not adequately evaluated and addressed. The Board disagrees with the representative. The December examiner adequality stated the Veteran's limitations and included limits on the Veteran's ability to perform certain functions. Moreover, other examiners opined on the Veteran's ability to work when they were evaluating other disabilities. Their conclusions were largely the same, the Veteran's ability to walk, stand, and climb stairs was limited. As stated above, the Board is not considering the Veteran's hearing testimony because it is not supported by the evidence. Further, the representative added that the Veteran lacks transferable skills which would render him unable to work. In making this conclusion, the representative does not state why the Veteran does not have transferable skills, but simply makes a blanket conclusory statement. Without justification, the Board does not find the representative's argument persuasive. Nonetheless, even if the Veteran did not have transferable skills, the evidence of record established that the Veteran can perform sedentary work. (Continued on the next page) Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). In this case, the Board finds that the Veteran's service connected disabilities do not render him unable to participate in substantial gainful employment. The Board does not weigh his non-service connected disabilities. His service connected disabilities do not completely preclude physical activity and would not preclude basic sedentary employment. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine does not apply because the preponderance of the evidence is against the claim. See 38 U.S.C. § 510; 38 C.F.R. § 3.102. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, Associate 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.