Citation Nr: 22012647 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 15-42 455 DATE: March 4, 2022 ORDER Entitlement to a rating in excess of 10 percent prior to October 8, 2019 for a right lower extremity sciatic nerve disability is denied. Entitlement to a rating in excess of 10 percent prior to October 8, 2019 for a left lower extremity sciatic nerve disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT 1. Prior to October 8, 2019, the Veteran's right lower extremity nerve disability was manifested by mild incomplete paralysis. 2. Prior to October 8, 2019, the Veteran's left lower extremity nerve disability was manifested by mild incomplete paralysis. 3. The Veteran's service-connected disabilities do not render him unable maintain substantially gainful employment. CONCLUSION OF LAW 1. The criteria for a rating in excess of 10 percent for right lower extremity nerve disability prior to October 8, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.6, 4.124a, Diagnostic Code (DC) 8720. 2. The criteria for a rating in excess of 10 percent for left lower extremity nerve disability prior to October 8, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.6, 4.124a, Diagnostic Code (DC) 8720. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1969 to May 1971. These matters were previously before the Board in September 2020. In this decision, ratings in excess of 10 percent for the Veteran's sciatic nerve disabilities were denied prior to October 8, 2019. The Board apologizes for the delay in adjudicating this case. However, the Veteran's representative requested multiple extensions in order to submit new evidence and therefore adjudication of this case was delayed, along with other issues. In a May 2021 Joint Motion for Remand (JMR) from the Court of Appeals for Veterans Claims (CAVC), the September 2020 Board decision was, in part, vacated and remanded because the Board had not considered several lay statements made by the Veteran pertaining to his sciatic nerve disabilities prior to October 8, 2019. These matters are therefore again before the Board. Context in this case is important: The Board notes as a preliminary matter that the Veteran has been in receipt of a 100 percent combined disability rating since November 16, 2020 and is also in receipt of Special Monthly Compensation (SMC) from that date. Considering the voluminous contentions of the Veteran's representative in this case, the Board believes it must provide comprehensive findings that fully address these request to remand the case. The Board also notes the contention that should an increased rating not be granted; he should be afforded a "retroactive medical opinion" (for the limited purposes of this decision sometimes called a "RMO") to determine when his disabilities increased. (See January 2022 Representative Brief.) It is imperative for the Veteran and the Veteran's Court to understand that the obtaining of an RMO typically provides the Board no medical evidence of any probative value when they are obtained. In most cases the examiner cannot provide the opinion or provides an opinion of highly limited probative value based on profound speculation. The undersigned has reviewed many of these attempted efforts to somehow evaluate a disability in the past based on highly limited objective medical evidence: They fail. Particularly in light of the facts of this case, the Board declines to remand this case for such an opinion. Though the Board acknowledges the Veteran's lay statements during the time on appeal that his disabilities had gotten worse, the Board does not find that the evidence of record, including those statements, provide sufficient evidence that a retroactive opinion would be able to determine the exact date the Veteran's conditions worsened. Even assuming, arguendo, that the condition did become "worse", such a fact does not support a finding that the condition made the next higher evaluation level. In fact, on review of the evidence of record, it appears that the condition was provided a disability evaluation that the Veteran did not meet for some time after the evaluation was provided. RMO's habitually only delay the full adjudication of Veterans' cases who have already been found to be 100% disabled. The Board also acknowledges the Veteran's argument that the October 2019 examination is inadequate because the examiner did not elicit information as to exactly when the Veteran's symptoms increased and that the matters should therefore be remanded for another opinion to determine when the Veteran's symptoms increased. However, as discussed below, the Board finds the October 2019 examination to be adequate and that no such deficiency existed. Based on the unique facts and evidence of this case, the Board finds a remand for such a speculative opinion to be of no constructive value. The evidence in this record does not support the Veteran's claim, and another medical opinion will not provide a basis to grant this claim. In the same vein, the Board notes the Veteran's contention that the record upon which his claim had been determined was incomplete because there was a nine-year gap in evidence between the December 2010 and October 2019 examinations. (See January 2022 Representative Brief.) The Board disagrees with the assertion that the mere lack of an intermediary examination means the record was "incomplete". Examination for compensation purposes of their service-connected problems is not an annual occurrence for all Veterans. There are treatment records from that time in addition to statements made by the Veteran. There is no indication any medical records that were in existence at the time were not obtained by VA or that VA did not make reasonable efforts to obtain any outstanding records. Thus, the Board finds the mere lack of an examination does not render the record incomplete as to make it improper for the Board to adjudicate these claim. As a matter of completeness, the Board will briefly address the apparent argument of an earlier effective date in the Veteran's appeal brief: In his January 2022 brief, the Veteran's representative also disagreed with the effective date assigned for the Veteran's 20 percent rating, saying "the Board assigned the effective date of the Veteran's 20 percent rating based simply on the date of his last VA examination." However, an earlier effective date for the assignment of a 20 percent rating is not before the Board. While the question of whether the Veteran is entitled to a 20 percent rating prior to his October 8, 2019 is similar to the question of an earlier effective date, the United States Court of Appeals for Veterans Claims (the Court) in Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), held that once a rating decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE). Therefore, there will be no discussion regarding earlier effective dates for the previous grant of 20 percent for the Veteran's right and left lower extremity nerve disabilities. Increased Rating Claims Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran's radiculopathy is rated under DC 8720. Under these guidelines, complete paralysis of the sciatic nerve, manifested by symptoms including that the foot dangles and drops, no active movement of the muscles below the knee, flexion of the knee weakened or lost, is rated as 80 percent disabling. Incomplete paralysis of the sciatic nerve which is severe, with marked muscular atrophy, is rated as 60 percent disabling. Moderately severe incomplete paralysis of the sciatic nerve is rated as 40 percent disabling. Important for this case, moderate incomplete paralysis of the sciatic nerve is rated as 20 percent disabling. Mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree of impairment. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings are combined with application of the bilateral factor. 38 C.F.R. § 4.124a. The Veteran contends his right and left lower extremity radiculopathy is worse than indicated by his 10 percent rating prior to October 8, 2019. The Veteran had stated over the years that his neuropathy had worsened and that he was experiencing more symptoms. (See e.g. January 2013 statement.) In August 2012, the Veteran said his symptoms had worsened and that he had less feeling in his feet and that his joints were burning daily. The Board has also considered the January 2011 statement by the Veteran's spouse who is a Registered Nurse, who said the Veteran had numbness and tingling in his feet. In this regard, the Board finds the statement of the Veteran's Nurse/spouse to provide evidence against this claim: The Board finds that numbness and tingling in his feet falls within the parameters of mild incomplete paralysis In a December 2010 examination, the Veteran said his conditions began at age 54, 10 years before the date of the examination. The Veteran reported tinging and numbness in his feet and loss of sensation in his toes and cramping in his legs after walking 1500 yards on level ground at 2 miles per hour. The Veteran also reported feeling persistent coldness in his lower extremities. The Veteran did not report neuralgia and no effects on the kidneys. The examiner found no objective evidence of persistent coldness, changes in color, ischemic limb pain at rest in the Veteran's extremities. The examiner found the Veteran's neurological function of the lower extremities to be within normal limits, though the right and left sensory function were decreased. The examiner stated there was no specific peripheral nerve identified but that the Veteran's peripheral neve examination did reveal neuralgia and that there was sensory dysfunction demonstrated by impaired vibratory sense but no motor dysfunction. The examiner reported the subjective symptoms were numbness and tingling and the objective symptoms were impaired vibratory sense. Context in this case is key: The Veteran's problems are primarily subjective. Obtaining an RMO in this case, considering these facts of this case, based on review of the evidence in this case, would serve no constructive purpose. The Veteran had another examination for his bilateral lower extremity nerve disabilities in October 2019. The examiner reviewed the Veteran's file, saw him in person, and reported several relevant treatment records and statements made by the Veteran about his symptoms. These symptoms reported by the Veteran included pain, tingling, and numbness in his feet which he reported in the past two years had spread to his hands. The Veteran reported he had not been treated for this condition and was not currently taking medication for these conditions. The Veteran reported mild constant pain, moderate intermittent pain, moderate paresthesias, and mild numbness in both lower extremities. The Veteran's strength was normal but his vibration and cold sensation were decreased in both extremities. The Veteran also had decreased light touch testing in his bilateral foot and toes. The Veteran was not reported to have muscle atrophy but did have trophic changes, including bilateral lower extremity loss of hair. The examiner opined that overall, the Veteran had moderate incompletely paralysis in both of his lower extremities. The Veteran contends the October 2019 examination to be inadequate because the examiner focused largely on the Veteran's current symptoms "without eliciting the history of those symptoms throughout the appeal period." However, the Board disagrees. This examiner saw the Veteran in person, reviewed his record, reported several relevant medical records, statements by the Veteran, and inquired as to the Veteran's treatment history and reported the Veteran said his symptoms had gone into his hands "two years ago," indicating the examiner took into account more of a time period than just the immediate symptoms of the Veteran's condition. Indeed, there is no indication the examiner "did not seek to elicit the historical symptom information necessary to substantiate the Veteran's claim." (See January 2021 Representative Brief.) Thus, the Board finds the October 2019 examination to be adequate. The Board has also reviewed the Veteran's treatment records and notes the records do mention the Veteran's neuropathy, though intermittently without continuous visits by the Veteran specifically for this condition. The Veteran has been found to have some decreased sensation to monofilament testing bilaterally. (See e.g. December 2012, January 2015 treatment records.) However, other treatment records indicate a normal monofilament testing. (See e.g. November 2010, February 2014 treatment record.) Some records also show the Veteran had no tremors and no motor control problems and that his skin was not cold to touch or that the Veteran had any other abnormal skin problems. (See e.g. November 2010, February 2014 treatment records.) Simply stated, not all the evidence in this case supports the current evaluations. Some records mention the condition of the Veteran's lower extremities; however, those records are in conjunction with a separate, non-related incident when the veteran fell out of a tree, which may have been due to his low blood sugar due to his diabetes, and do not relate to his service-connected bilateral lower extremity neuropathy. (See e.g. October 2012 treatment records.) The Board has considered the above evidence, including the Veteran's statements that indicate his condition leads to pain, tingling, and numbness which he said had increased in severity. While the Veteran is competent to report the symptoms of his disability such as the symptoms discussed in the lay statements above, he is not competent to opine on matters requiring medical knowledge, such as the severity of his complex medical conditions based on the criteria for the next higher rating. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, it is possible the Veteran did experience those symptoms but that the severity of his condition did not medically arise to a level warranting a higher evaluation. The Board must weigh the Veteran's statements against the objective medical evidence of record. In doing so, the Board acknowledges the Veteran did not have an examination for many years after his first examination but does not find this fact to be a reason the Board is unable to determine the severity of the Veteran's bilateral lower extremity nerve disability, or to obtain an RMO in a ineffective effort to address the nature and extent of a subjective condition in the past. To reiterate what was stated above, the Board finds a remand for a retroactive conclusory opinion would be fruitless as the examiner would not be evaluating the Veteran at the time in question. Thus, the Board has proceeded with its analysis based on the evidence of record. Even in the absence of another examination during this time, the Board has a good picture of the Veteran's disabilities, and it does not always support the evaluations given at that time, let alone higher evaluations. While there is no examination of record, medical records do not show the Veteran increasingly sought treatment for his nerve disability, even when he said it was worsening. The Veteran went to seek medical treatment for several other conditions during this time and while the Veteran may indeed have felt his conditions were worsening, the evidence does not indicate he felt them severe enough to seek specific, ongoing medical attention for his nerve disabilities. Additionally, the record at this time does not indicate the Veteran had any motor control problems or trophic changes due to his nerve condition, though the evidence does indicate, on balance, that he suffered from decreased sensation in both lower extremities, within the parameter of a "mild" problem. The Veteran's representative has also made an argument for an increased rating under the M21. (See January 2022 Representative Brief.) The M21 does not apply to the Board and is not binding on the Board. The Board does not use M21. However, even if it were, the Board finds that it does not provide a basis for an increased rating. While the M21 provides that a moderate evaluation may be assigned for sensory-only impairment manifested by combinations of significant sensory changes and reflex or motor changes of a lower degrees, the Board does not find the Veteran had significant sensory changes during this time. While the Veteran consistently was reported to have decrease sensation on testing, the evidence does not indicate a drastic decrease nor does the evidence, either lay or objective, show the Veteran had reflex or motor changes during this time. The Board agrees with the Veteran that some of the symptoms reported in his December 2010 examination and his October 2019 examination were the same. Indeed, in both examinations, the Veteran had impaired sensory issues in both lower extremities and reported tingling, numbness and pain. In December 2010, the Veteran also reported progressive loss of strength in his legs and feet. The Veteran's representative stated that this suggest the Veteran's symptoms were more than "wholly sensory." However, while some of the Veteran's reported symptoms were the same, such as having sensory function decreased and feeling coldness in his extremities, in his December 2010 examination, there is no indication the Veteran had trophic issues due to his neuropathy and while the Veteran reported feelings of persistent coldness, upon examination, the examiner did not find such symptoms. The Veteran's extremities also did not reveal motor control problems. In his October 2019 examination, the Veteran was found to have mild constant pain, moderate intermittent pain, moderate paresthesias, and mild numbness in both lower extremities. The examiner also found objective evidence of decreased cold sensation and trophic changes. These objective symptoms were not noted in his previous examination. Thus, there are clearly differences in the Veteran's reported and found symptoms upon examination from the two examinations, contradicting the Veteran's contention that the symptoms his 20 percent rating was based on were exactly the same as previously reported. Additionally, the December 2010 examination did not show, nor does the remainder of the Veteran's record show, that the Veteran's disability was manifested by impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis of either lower extremity. Simply stated, the best evidence in this case supports the finding that the Veteran had, a best, a mild problem with this condition. During this time, the Board notes that the Veteran's treatment record also does not indicate increased treatment for or increased reporting on his symptoms. Indeed, in his October 2019 examination, Veteran himself reported he was not seeking treatment for his condition, while also seeking treatment for other medical conditions. The Board does not find it reasonable that if the Veteran's condition had deteriorated significantly in the intervening years between his examinations that he would not have sought additional treatment (recall that the Veteran's spouse is a nurse). In multiple treatment records for his diabetes and other conditions related to his diabetes, the Veteran did not mention problems or symptoms related to his lower extremity nerve condition. The Board notes the Veteran's statements about his condition worsening and his statements that his symptoms began around 2012. However, while the Veteran reported some symptoms, there is insufficient objective evidence to determine that the Veteran's symptoms amounted to moderate incomplete paralysis of his bilateral lower extremities as there were no motor deficits and no orthopedic problems related to his bilateral lower extremity neuropathy and no other objective evidence indicating the Veteran's condition had worsened to a level warranting a higher rating. As a matter of completeness, the Board notes the Veteran's representative, in his January 2022 brief, stated the Board had not considered the favorable evidence in the October 2019 examination that the Veteran said his symptoms had spread to his hands. However, the Board notes the Veteran has been awarded two separate disability ratings for this upper left and upper right extremity neuropathy. Therefore, as those symptoms have already been contemplated and have been service-connected, consideration of those two conditions in the present decision would be improper. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Regarding the claims above, the Board acknowledges and has considered the Veteran's statements that his conditions bother him, cause him pain, discomfort, and that he believes his bilateral lower extremity neuropathy warrants a higher rating. However, while the Board has carefully considered the Veteran's and his family's statements about his symptoms and when they began, these statements must be weighed against the objective evidence of record. While the record contains generalized statements from the Veteran about his symptoms getting worse, these statements, and the rest of the record, do not indicate with specificity when these increased symptoms began and also does not contain evidence indicating that those symptoms reported by the Veteran would have, on their own, warranted a higher rating, even if a date could be determined. The Board has weighed the objective evidence of record against the Veteran's statements and finds the objective evidence to be more probative as it contains not only indications of the Veteran's symptoms, the dates he experienced those symptoms, but also indicates a lack of symptoms throughout the year that would warrant a higher evaluation. TDIU Claim The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16(a). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, 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). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. Provided a veteran does not meet these minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under § 4.16(b) if it is established he is indeed unemployable on account of his service-connected disabilities. 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. If the record supports the claim, the Board must first forward the case to the Director of the Compensation Service for extraschedular consideration. The Board upon receipt of that determination is not bound to accept it, and may resolve the question of extraschedular entitlement of its own accord. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (the findings of the Director of Compensation Service on extraschedular consideration are not evidence, but rather a decision of the AOJ reviewed de novo by the Board). The Board notes that, for a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's combined disability rating is currently 100 percent as of November 2020. The Veteran's combined disability rating was 80 percent as of October 8, 2019 with his bilateral lower extremity neuropathy each rated as 20 percent disabling. In addition to these disabilities, the Veteran is rated for the following: A heart disability, rated as 100 percent disabling from November 16, 2020, Diabetes, rate as 20 percent disabling from September 13, 2001, Bilateral cataracts, rated as 20 percent disabling from April 22, 2014, Bilateral upper extremity peripheral neuropathy, each rated as 20 percent disabling from October 8, 2019, and A scar, rated as noncompensable from November 17, 2020. The Veteran previously had experience working for himself and at the Department of Labor where he worked full-time from December 1980 to December 2008 as an auditor. This job required extensive travel and he retired in 2008 when he became eligible for maximum retirement benefits, not because of his service-connected problems. Again, context in this case is important: The Veteran's work history provide highly probative factual evidence against this claim. The Veteran reported that several years after his retirement, his diabetes symptoms began to worsen and this affected his ability to walk and work around his farm. The Veteran has reported he currently works for himself four to five hours per week. The Board acknowledges that this level of employment is not considered to be gainful employment by the Board. The Veteran has reported he left his last job because of his disability. The Veteran has a college degree and a Master's Degree in Business. Upon review of all the evidence of record, both lay and medical, the Board finds that a TDIU and referral for an extraschedular consideration of a TDIU are not warranted. The examinations of record give some insight as to whether the Veteran's service-connected disabilities render him unable to work. The Veteran's scar and eye disabilities have not been found to impact his ability to work. (See April 2014, February 2015 examinations.) The Veteran's heart has been noted to impact his ability to work in that he would lose zero to one week of work due to his heart and that he would have shortness of breath with light activity and that he was unable to do a job efficiently. However, the examiner also reported the Veteran's heart catherization and atrial fibrillation doesn't impact his ability to work. (See May 2021 examination.) The October 2019 examiner opined the Veteran's nerve disabilities impacts his ability to work in that his bilateral upper extremity neuropathy would make it difficult for him to lift heavy things, reaching over head, prolonged typing, writing, gripping, pushing or pulling. The Veteran's bilateral lower extremity neuropathy would lead to problems with prolonged standing and walking, heavy lifting, running, kneeling, squatting, and climbing. He would also have trouble with numbness, pain, tingling, and lack of endurance with weight bearing. A detailed review of the evidence of record, at many points, does not support the current evaluations. The Board acknowledges and has considered the lay statements of record addressing the Veteran's alleged "unemployability". The Board notes the Veteran is competent and credible to report the subjective symptoms and functional limitations he experiences regarding his service connected disabilities. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau, supra. Without considering the Veteran's retirement in 2008, or his age, the Board has considered the Veteran's education and skill level, whether he is physically able to perform activities of employment, and whether he has the mental ability to perform such tasks. The Veteran is highly educated, with an advanced degree and no indication that his service-connected disabilities impair his ability to think critically, follow instructions, or otherwise would impair him mentally while at a workplace. The Veteran's record also indicates he had a history holding one job for many decades with no indication of behavioral or performance problems leading to issues with employment. The Board notes the Veteran's service-connected heart, diabetes and related conditions do preclude him from some types of work and the Board acknowledges the Veteran would be unsuited for physical types of labor that would involve strenuous activity that would strain his heart or activities that would require him to use his extremities during sustained activity. Here, it is clear the Veteran's service-connected disabilities may cause difficulty obtaining employment as his choices of work may be limited. However, this difficulty due to his service-connected disabilities is not, in of itself, sufficient to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361, Ray v. Wilkie, 31 Vet. App. 58 (2019). Prior to the date he met the schedular requirements for a TDIU, the record contains information regarding an incident where the Veteran fell from a tree. In January 2013, the Veteran reported he fell out of a tree due to a drop in blood sugar and broke his leg. Statements from the Veteran's brother and medical records support that the Veteran did fall out of a tree and a September 2014 treatment record indicates it may have been due to the Veteran's diabetes. Subsequent treatment notes indicate the Veteran's right lower extremity weakness due to this fall. The Board has reviewed the remainder of the Veteran's treatment records and does not find significant evidence that the Veteran is unemployable due to his service-connected disabilities, while it still acknowledging his service-connected disabilities do lead to some physical limitations. In his January 2022 brief, the Veteran's representative contends the Veteran is incapable of performing even sedentary work. The Veteran referred to the Dictionary of Occupational Titles (DOT) and offered that the term sedentary work requires "exerting up to 10 pounds of force...up to 1/3 of the time...to lift, carry, push, pull, or otherwise move objects, including the human body." It also "involves sitting most of the time, but may involve walking or standing...occasionally." The Veteran's brief also cited to the Social Security Administration (SSA) definition of sedentary in determining total disability, saying that "sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." (See January 2022 Representative Brief.) However, the Board notes that these definitions of sedentary are not binding on the Board. Indeed, VA regulations do not contain a definition of "sedentary employment" though the Secretary may promulgate regulations in line with SSA's definition of sedentary employment. See 38 C.F.R. § 4.16, Withers v. Wilkie, 30 Vet. App. 139 (2018). Again, context in this case is important: The Veteran's clearly successful work history provides highly probative factual evidence against this claim: The Veteran retired after a good career. In Withers, supra the Court held that if the Board bases its denial of TDIU in part on the conclusion that a veteran is capable of performing "sedentary work," then it must define that term considering the specific facts of each case, including a particular Veteran's work history, education, and training. The Board notes that since "sedentary" is defined as "requiring or marked by much sitting (a sedentary desk job)," it interprets this definition to mean that the Veteran could have worked in a job where he primarily would sit down. See WEBSTER'S II NEW COLLEGE DICTIONARY (1999). The Board notes the examiners did not use the word "sedentary" in their opinions as to whether the Veteran's service-connected disabilities impacted the Veteran's ability to work. Additionally, the Board declines to apply the definitions of "sedentary employment" as suggested in the January 2022 brief. While the symptoms of his neuropathy would limit his ability to perform physical activity, the Veteran is not reported to have any difficulty sitting. There is no indication that any sedentary job he may have would require him, as part of his job requirements, to lift heavy objects, to continually reach overhead, to be on his feet for long periods of time, to run, squat, climb, or type for prolonged periods of time. Even if the Board were to accept the suggested definitions of sedentary work, the Veteran's record does not indicate he would be unable to perform an office type job where he would occasionally have to perform some of those activities with breaks and a job where he was primarily sitting. The Veteran's history of holding a job for decades and his education level also speak to his ability to adapt to workplace situations, understand and perform tasks required of employment, and interact with coworkers without trouble. Upon review of all the evidence of record, both lay and medical, the Board finds that referral for an extraschedular consideration of a TDIU is not warranted. The Board acknowledges and has considered the Veteran's statements addressing his employability. The Board notes the Veteran is competent and credible to report the subjective symptoms and functional limitations he experiences regarding his service connected disabilities. However, the Board does not find the overall record supports a finding that the Veteran is incapable of performing the mental and physical acts required by employment due to his service-connected disabilities, even when considered in the context of the Veteran's statements of unemployability. The Board notes that, for a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Extraschedular referral is appropriate when the evidence presents such an exceptional or unusual disability picture that the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If such an exceptional or unusual disability picture exists, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-16. When these two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service. 38 C.F.R. § 3.321 (b)(1) (2020). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 118-19. Having reviewed the complete record, the Board finds that the preponderance of the evidence is against referring the Veteran's claim for a TDIU on an extraschedular basis. There is no indication that the Veteran's service-connected disabilities place him in a different category of other Veteran with an equal rating of disability as the evidence does not show marked interference with employment or frequent hospitalizations. Again, the Veteran's file does not indicate the Veteran had marked interference with employment as he was not absent and did not have had disciplinary problems at work due to his service-connected disabilities. The Board notes that entitlement to a TDIU is a legal question, not a medical question. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA not a medical examiner."). After a review of the record, the Board does not find the record demonstrates the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected disabilities or that he is incapable of performing the mental and physical acts required by employment, even assessed in the context of subjective factors such as his occupational background and level of education. (Continued on the next page) Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Except as otherwise noted, because the evidence is not in approximate balance or nearly equal, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.