Citation Nr: 22010587 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 14-31 316A DATE: February 24, 2022 ORDER Entitlement to an initial disability rating of 20 percent (but no higher) for right foot, status post neuroma excision with residual scar to include metatarsalgia, claw foot (pes cavus), and plantar fascia is granted. Entitlement to a total disability rating based on individual unemployability is denied. FINDINGS OF FACT 1. The Veteran's right foot disability manifested by moderate disability and pain with shortened plantar fascia, marked tenderness under metatarsal heads, and very painful callosities. 2. The Veteran's right foot disability is not productive of severe disability. 3. The disorder has not resulted in unilateral pes cavus with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity. 4. The most probative evidence does not reflect that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of 20 percent (but no higher) for the right foot, status post neuroma excision with residual scar to include metatarsalgia, claw foot (pes cavus), and plantar fascia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.71a, Diagnostic Codes 5269, 5276, 5278, 5279. 2. The criteria for entitlement to a total disability rating based on individual unemployability have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1996 to January 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the August 2014 rating decision, issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a Board hearing before the undersigned Veteran Law Judge. A transcript of the hearing is associated with the record. In August 2020 and January 2021, the Board remanded this matter for further development. In August 2021, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. § 4.21. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation 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. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to an increased rating for the right foot, status post neuroma excision with residual scar to include metatarsalgia, claw foot (pes cavus), and plantar fascia The Veteran seeks a higher rating for his right foot status post neuroma excision with residual scar and indicates that his condition has worsened. The RO assigned a 10 percent rating, but the Veteran believes his disability rating should be 30-50 percent if not higher because nothing can be done to fix his foot. See September 2014 Form 9. The Veteran also requested a rating above 70 percent, as he stated he has been off work for 11 months due to the condition. See June 2015 Form 9. The Veteran contends that his right foot condition has caused him to change the way he walks. The Veteran's spouse stated that the Veteran can barely walk, and he limps with pain. The Veteran reportedly has bruises around the pads of his feet, and he moves his feet in his sleep due to the pain. The Veteran's spouse also indicated that the Veteran is missing work because of the pain, and that his work boots make it worse. She stated that he is currently out of work on temporary disability due to his condition. His feet have always been an issue, but they have become worse. See September 2014 Statement in support of the claim. The August 2014 rating decision awarded the Veteran service connection for status post neuroma excision with residual scar date on July 15, 2010, therefore, the appeal period begins July 15, 2010. The Veteran's right foot, status post neuroma excision with residual scar disability is currently rated at a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5279. Legal Criteria During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Prior to February 7, 2021, the rating schedule did not contain a diagnostic code for plantar fasciitis. Rather, it was typically rated by analogy. Since that time, however, the rating schedule has been amended to add Diagnostic Code 5269. Under that code, when there is bilateral involvement, with no relief from both non-surgical and surgical treatment, a 30 percent rating is warranted. Otherwise, a 10 percent rating is warranted. This code may not be applied prior to the effective date of the regulation amended the criteria, and the Board will apply the version of the criteria most favorable to the Veteran. Under Diagnostic Code 5276, a 30 percent evaluation requires severe disability with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, if it is bilateral. A 20 percent is assigned if it is those criteria are met but it is unilateral. A 50 percent evaluation requires pronounced disability with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo-Achilles on manipulation, that is not improved by orthopedic shoes or appliances, if it is bilateral. A 30 percent rating is assigned if those criteria are met and it is unilateral. Id. Under DC 5278, a 30 percent rating is warranted for acquired unilateral pes cavus, and a 50 percent rating is warranted for bilateral acquired pes cavus, when there is marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity. 38 C.F.R. § 4.71a. Under DC 5278, a 20 percent rating is warranted for acquired unilateral pes cavus, and a 30 percent rating is warranted for bilateral acquired pes cavus, when all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads Under Diagnostic Code 5279 provides a single, maximum 10 percent rating for unilateral or bilateral anterior metatarsalgia (Morton's disease). The Board notes that this is the only and highest schedular rating under this Diagnostic Code. Under Diagnostic Code 5284, a 10 percent rating is assigned for other foot injury that is moderate; a 20 percent rating for moderately severe; and a 30 percent rating for severe. A Note to Code 5284 provides for a 40 percent rating where there is an actual loss of use of the foot. 38 C.F.R. § 4.71a. Summary of evidence - right foot, status post neuroma excision with residual scar The Veteran's medical treatment records show that he is receiving ongoing treatment for his right foot disability. In September 2012, the Veteran's spouse submitted a statement in support of the claim. She stated that the Veteran wakes up and can barely walk, and he limps in pain. He constantly moves his feet in his sleep due to pain. The Veteran's spouse stated that the Veteran has bruises around the pads on the soles of his feet. He has missed work because of the pain, and his work boots make it worse. She indicated that the Veteran is currently out of work and on temporary disability due to his condition. Finally, she stated that the Veteran has always had foot pain. In October 2014, the Veteran received treatment from his primary doctor. The Veteran reported that his right foot bothers him from time to time. The examiner noted that the Veteran had a neuroma removed several years ago, and says it still bothers him. The examiner noted neuropathy in both feet. In April 2015 the Veteran had a private DBQ examination for his feet. The examiner indicated that the Veteran was diagnosed with plantar fasciitis, Morton's neuroma, and metatarsalgia. The examiner noted that the Veteran had pain in both feet, and he had two surgeries for his right foot, and that pain is still present. The Veteran reported flare-ups that limit his weight-bearing ability, and the pain limits ambulation. The Veteran has extreme tenderness of plantar surfaces in both feet that does not improve with orthopedic shoes or appliances. There is evidence of marked deformity in both feet. In January 2019, the Veteran testified at a Board hearing. He testified that he had two surgeries during service, and was treated by the VA. The Veteran testified that the soft tissue has deteriorated, he does not have any left on the bottom of the cushions of his foot. The Veteran testified that, "Underneath the balls of my joints, underneath the -- my feet where I walk, there's nothing -- there is no cushion in between my bone and the tissue. There's no tissue left in there. It's a big indention. The Veteran also testified that it has caused him to have to change the way he walks, which has impacted his knees, ankles, and back. He testified, "And every day, just even coming here to this meeting, after putting my shoes on, I will go home, and my feet will be swollen up towards my ankles and everything. And in the site at the bottom of it, there's nothing to ease the pain where I'm walking. There's no tissue left." In April 2021, the Veteran was afforded a VA examination for his right foot condition. The examiner indicated that the Veteran was diagnosed with plantar fasciitis, Morton's neuroma, and metatarsalgia. The Veteran reported that he has flare-ups that manifest as increased pain, stiffness, and decreased ROM, that occurs every other day, and lasts 4-6 hours. The Veteran has difficulty standing or walking. Specifically, the Veteran stated that, "I have difficulty standing/walking for prolonged periods, lifting, bending, stooping, and climbing." The examiner noted that the contributing factors of the Veteran's disability include disturbance of locomotion, and pain. There is objective evidence of pain during passive motion, active motion, weightbearing, and non-weightbearing. The Veteran reported using a walker regularly. The examiner opined that the Veteran's diagnosed conditions other than the Veteran's service-connected right foot status post neuroma excision with residual scar are not related to an in-service, event, or disease during the Veteran's active service. As to the rationale, the examiner stated that the separation examination indicated the Veteran underwent treatment for neuroma excision to the left foot in 1999, and the Veteran received treatment in 2015 for his left foot neuroma. In September 2021, the Veteran was afforded a VA examination for his foot disability. The examiner noted that the Veteran had a diagnosis of plantar fasciitis, metatarsalgia, acquired pes cavus (clawfoot), and status post Morton neuroma excision of the right foot. The Veteran reported that his symptoms include a constant, dull to sharp and throbbing pain in the entire right foot. He stated he will have stiffness in the heel and has loss the padding underneath where the neuroma was removed, and it left a "dent." The pain will worsen with long periods of inactivity, standing and walking for any length of time. The examiner opined that the Veteran's plantar fasciitis, metatarsalgia, acquired pes cavus (clawfoot), and status post Morton neuroma excision of the right foot are not related to his service-connected right foot status post neuroma excision with residual scar. The examiner explained, Morton's Neuroma is typically understood to be caused by an injury to the nerves in the foot, or strain and injury to the toes that is often caused by wearing improper ill-fitting shoes that place great strain on the toes and ball of the foot. This strain and injury results in a mass of tissue that forms around the nerves in the toes, causing a fibroma. Metatarsalgia is caused by trauma and inflammation in the metatarsal heads which typically occurs by abnormal arches, improper footwear, obesity, or simply due to the aging process. Although both typically occur in the ball of the feet, one is an injury to the nerves and the other is an injury to the metatarsal heads. Plantar fasciitis occurs when the strong band of tissue that supports the arch of your foot becomes irritated and inflamed, causing pain in the bottom of the heel. This is typically due to prolonged pressure on the feet that damages or tears the ligaments, but it can also be due to natural wear and tear in the daily life. Later in September 2021, the Veteran was afforded an additional VA examination for his foot disability. See examination report received 11/02/2021 titled Foot Conditions, Including Flatfoot (Pes Planus Disability Benefits Questionnaire. The examiner noted that the Veteran had a diagnosis of plantar fasciitis, metatarsalgia, and acquired pes cavus (clawfoot). The Veteran reported that the right tissue underneath his foot was removed at the third and fourth toe. He reported it, "feels like a rock under my foot because there is a huge callus forming where the tissue came out." The Veteran reported that his feet are widening, and he has immediate pain when he walks. The Veteran has inserts that have been custom made for his feet, but they have provided little to no relief. The Veteran has to rest after ambulating for five minutes and he is no longer able to run, hike, and he limits his exercise. The Veteran reported that his feet hurt all of the time, and he has flare-ups once a week that last two to three days, that result in pain. The precipitating factors include activity, ambulation or standing, and the pain is severe. The examiner noted that the contributing factors of the Veteran's disability include less movement than normal; swelling; instability of station; disturbance of locomotion, and interference with standing. There is objective evidence of pain during passive motion, active motion, weightbearing, non-weightbearing, and rest and non-movement. The MRI in December 2011 revealed that the Veteran had mild plantar fasciitis, and an x-ray revealed mild pes cavus alignment. The examiner noted that the Veteran had shortened plantar fascia and marked tenderness under metatarsal heads. The examiner opined that the Veteran's right plantar fasciitis, right acquired pes cavus (clawfoot), and right metatarsalgia are progressions of the Veteran's service-connected status post neuroma excision with residual scar disability. The examiner explained that the laxity in the ligaments and change in gait of the foot, due to the Veteran's service-connected foot disability can lead to the Veteran's right plantar fasciitis, right acquired pes cavus (clawfoot), and right metatarsalgia disabilities. Analysis of right foot, status post neuroma excision with residual scar The Veteran's right foot, status post neuroma excision with residual scar (right foot disability) is currently rated at a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5279. The Board finds that the Veteran's right foot disability has progressed, and the second September 2021 VA examiner opined that the Veteran's right plantar fasciitis, right acquired pes cavus (clawfoot), and right metatarsalgia are progressions of the Veteran's service-connected status post neuroma excision with residual scar disability. The Board acknowledges that there were previous VA medical opinions that resulted in contrary findings to this medical opinion, but resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's disability progressed, and a 20 percent rating is warranted under Diagnostic Code 5278. Specifically, the Board finds that Diagnostic Code 5278 most accurately depicts the Veteran's disability because the Veteran was diagnosed with acquired unilateral pes cavus plantar fasciitis, and metatarsalgia. The Veteran's limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads are explicitly listed within Diagnostic Code 5278. The Veteran's right plantar fasciitis, right acquired pes cavus (clawfoot), and right metatarsalgia are all contemplated by Diagnostic Code 5278, that states as "all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads." The Board considered evaluating the Veteran's disability under Diagnostic Code 5276, but finds that a rating higher than 20 percent could not be granted for the unilateral disability because the disorder has not resulted in pronounced disability with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo-Achilles on manipulation, that is not improved by orthopedic shoes or appliances. The Board considered leaving the Veteran's disability rating under Diagnostic Code 5279, but the Veteran's disability rating would be limited to 10 percent. Finally, the Board considered rating the Veteran under Diagnostic Code 5284, however when a disability is listed in the Rating Schedule, rating by analogy is not appropriate. Copeland v. McDonald, 27 Vet. App. 333 (2017). Moreover, the disability is only moderate in degree, so a rating higher than 20 percent is not warranted. Therefore, the Board finds that 38 C.F.R. § 4.124a, Diagnostic Code 5278, which pertains to the Veteran's claw foot (pes cavus), is the most appropriate diagnostic code to apply in rating the Veteran's service-connected right foot condition. Cf. Butts v. Brown, 5 Vet. App. 532 (1993) (stating that the Board may choose the diagnostic code to apply provided the choice is supported by reasons and bases, as well as the evidence); see also 38 C.F.R. § 4.20. The Board also considered granting the Veteran separate disability ratings for each disability, but this would constitute pyramiding because there is no separate symptomology distinct from the disabilities captured in Diagnostic Code 5278 and would thus result in double compensation for the same disability under different diagnoses, in violation of the rule against pyramiding. See 38 C.F.R. § 4.14. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence is not in approximate balance or nearly equal in the veteran's favor, the claim must be denied. Lynch v. McDonough, 21 F.4th 776, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application). In this case, the Board finds that a 20 percent initial disability rating for right foot, status post neuroma excision with residual scar to include metatarsalgia, claw foot (pes cavus), and plantar fascia is warranted. To the extent the Veteran seeks ratings higher than those assigned herein, the evidence is thus neither evenly balanced nor approximately so with regard to whether a higher disability rating is warranted for the Veteran's right foot. Rather, the evidence persuasively weighs against awarding the Veteran an initial disability rating in excess of 20 percent for right foot, status post neuroma excision with residual scar to include metatarsalgia, claw foot (pes cavus), and plantar fascia. The benefit of the doubt doctrine is therefore not for application as to this claim. Extraschedular Consideration The issue of consideration of an extraschedular rating was raised the Veteran's representative's November 2021 IHP. The Veteran's representative did not specify the Veteran's contentions for the extraschedular rating beyond stating that the Veteran's disability has worsened. The Veteran's representative also indicated that the disability impacts the Veteran's ability to perform any type of occupational task. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The record shows that his primary complaints consisting of pain, stiffness, and decreased range of motion. Diagnostic Code 5278 does not specifically list all the Veteran's symptoms or complaints. However, it does contemplate functional loss, which may be manifested by, for example, pain, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Because the Rating Schedule was purposely designed to compensate for such functional effects of the Veteran's disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. 2. Entitlement to a total disability rating based on individual unemployability The Veteran seeks entitlement to a TDIU based on the collective effects of his service-connected disabilities. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341,4.16, 4.19. "Substantially gainful employment" is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. "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," and 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, 73 (2019). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). A TDIU may also be considered on an extraschedular basis. If a veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). An extraschedular rating is requested by the RO and approved by the Director of the Compensation Service. 38 C.F.R. § 4.16(b). The Veteran seeks entitlement to a TDIU, contending that his bilateral foot condition prevents him from securing or following any substantially gainful occupation. In June 2015, the Veteran filed his Form 9, at which time he reported that he has been off work for 11 months due to his condition. Accordingly, the Board finds that a claim for TDIU is part and parcel of the underlying increased rating claim for his right foot disability. In his July 2015 application for a TDIU, the Veteran noted that he had worked in construction until April 2015. However, the Veteran indicated the last time he worked full time was in September 2014. Here, there remains an open question as to whether the Veteran has been precluded from obtaining or maintaining a substantially gainful occupation as a result of his service-connected disabilities. During the relevant appeal period, the Veteran was service connected for left foot trauma at a 10 percent disability rating; left knee strain at a 10 percent disability rating; right foot, status post neuroma excision with residual scar to include metatarsalgia, claw foot (pes cavus), and plantar fascia at a 20 percent rating; chronic deltoid ligament sprain. left ankle (claimed as ankle condition left) associated with status post neuroma excision of the right foot at a 10 percent disability rating; chronic deltoid ligament sprain, right ankle (claimed as ankle condition right) associated with status post neuroma excision of the right foot at a 10 percent disability rating; scar, right foot at a 0 percent disability rating; and left foot scar, residual of neuroma excision associated with left foot trauma at a 0 percent disability rating. The combination of the Veteran's disability ratings is 60 percent. The Board notes that under 38 C.F.R. § 4.16, when determining whether the single 60 percent disability requirement has been met, you may consider multiple disabilities to be one disability if they are disabilities of one or both lower extremities. In this case all his service-connected disabilities involve his lower extremities. Accordingly, the preliminary schedular percentage requirements for a TDIU were met during the relevant appeal period. However, the Board does not find that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. In September 2014, the Veteran's spouse submitted a statement in support of the Veteran's claim. She indicated that the Veteran wakes up and can barely walk, and he limps in pain. She indicated that the Veteran is missing work due to the pain. In April 2015, the Veteran had a private examination for his feet. The examiner noted that the Veteran's ability to work would be impacted by limitations in standing and walking. In July 2015 the Veteran submitted an application for increased compensation based on unemployability. The Veteran indicated that he was last employed in April 2015, and he worked in construction. The Veteran noted that he left his job because of his disability, and he did not try to obtain any other type of employment. The Veteran completed two years of college and has not received any other type of training since he claimed he was too disabled to work. The Veteran indicated that his work was impacted by having to wear a "camwalker boot" due to pain and burning. The Veteran's doctor put the Veteran on limited duty, which the Veteran indicated that in his line of work, will not work. In August 2015, the Veteran submitted a request for information form. The Veteran indicated that he was on disability for a year per "co policy." In August 2015, the Veteran's employer submitted a form in support of the Veteran's claim. The employer indicated that the Veteran's worked included maintenance on industrial equipment, mechanical welding and pneumatic. The employer indicated that the Veteran is unable to work due to the Veteran's disability. Specifically, the Veteran cannot walk or stand for prolonged times. In April 2021, the examiner indicated that it is at least as likely as not (50 percent or greater probability) that related to the Veteran's service-connected condition(s) the Veteran is able to perform sedentary work for 8 hours. In an April 2021 foot disability examination, the examiner noted that the Veteran's left foot trauma; status post neuroma excision of the right foot impacts his ability to stand/walk for prolonged periods, lift, bend, stoop, and climb. In September 2021, the Veteran underwent a VA examination for his foot disability. The examiner noted that the Veteran disability impacts his ability to perform any type of occupational task. Specifically, the examiner indicated that the Veteran would have difficulty with long periods of inactivity, standing and walking for any length of time. In November 2021, the Veteran underwent a VA examination for his foot disability. The examiner noted that the Veteran's condition has impacted him as he is tasked with frequent standing, ambulating, bending and kneeling, which aggravates his foot condition. The Board has considered the Veteran's, special training, and previous work experience. See 38 C.F.R. §§ 4.16. The Board finds that his previous work experience and training are not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as inspection work or security monitoring. The Veteran has completed two years of college. The Board acknowledges that the Veteran may not be able to do physically taxing work, but he would be able to work in an office setting doing administrative work, or other work that does not require the Veteran to walk long distances or stand for a prolonged period. The Board finds that the Veteran's work history would not prevent him from transitioning to an unskilled or semi-skilled occupation, which do not require special training, and can be learned on the job site. The Board acknowledges the Veteran's representative's contention that a new examination is necessary to clarify if the Veteran's service-connected disabilities prevent him from maintaining gainful employment. However, the Board does not find this necessary because the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. See Geib, 733 F.3d at 1354. The Board finds that the medical examiners have consistently indicated that the Veteran would need to acquire a position that does not require him to stand or walk for extended periods of time. The Board also acknowledges that the Veteran may have nonservice-connected conditions, that may further limit him such that he cannot secure or follow a substantially gainful occupation. However, the nonservice-connected disabilities are not for consideration. In view of the above-described limitations, the Board finds that the Veteran is essentially limited to work that does not require him to stand or walk for a significant amount of time or to overly exert himself physically. With such an occupational profile, the Veteran would be able to perform work such as inspection, and security monitoring, which do not involve exertional activities beyond the Veteran's residual functional capacity in view of his service-connected lower extremity disabilities. (Continued on the next page) As such, the evidence of record does not show that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, at any time during the appeal period. The evidence is neither evenly balanced nor approximately so with regard to whether a TDIU is warranted. Rather, the evidence persuasively weighs against awarding the Veteran a TDIU. The benefit of the doubt doctrine is therefore not for application as to this claim. See Lynch v. McDonough, 21 F.4th 776, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.