Citation Nr: 22014633 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-18 013 DATE: March 14, 2022 ORDER Entitlement to a 30 percent rating for residuals of fracture second right metatarsal is granted. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) beginning on December 1, 2019 is granted. Entitlement to a TDIU from December 15, 2016 to February 1, 2017, and from May 16, 2019 to December 1, 2019, is dismissed as moot. REMANDED Entitlement to a TDIU, to include as on an extraschedular basis, from February 1, 2017 to May 16, 2019, is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's residuals of fracture second right metatarsal manifested in pain that was, at worst, severe in nature with marked deformity, pain on manipulation and use accentuated, indication of swelling on use and without characteristic callosities. 2. Beginning December 1, 2019, the Veteran's service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment. 3. For the appeal period from December 15, 2016 to February 1, 2017, and from May 16, 2019 to December 1, 2019, the Veteran has a schedular combined 100 percent rating. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating for a residuals of fracture second right metatarsal have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71, Diagnostic Code 5284. 2. The criteria for entitlement to a TDIU from December 1, 2019 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 3. The Veteran's claim of entitlement to a TDIU from December 15, 2016 to February 1, 2017, and from May 16, 2019 to December 1, 2019, is moot. 38 U.S.C. § 1114(s); 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1968 to April 1972. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Pittsburgh, Pennsylvania. The Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Board in October 2021. A transcript of the hearing has been associated with the claims file. The issue of entitlement to a TDIU has been raised by the record and has been added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a 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); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised). 1. Entitlement to a 30 percent rating for residuals of fracture second right metatarsal is granted. The Veteran seeks a higher rating for his residuals of fracture second right metatarsal as his symptoms are more severe than contemplated by the current rating assigned. Specifically, he testified at his October 2021 Board hearing that his right foot symptoms manifested with the inability to walk distances, an awkward gait, multiple surgeries resulting in a larger and wider foot, avoiding all activities that required balance, swelling, pain, difficulty with concentration due to the pain, interference with household activities, such as cutting the grass and having to wear one shoe at all times. See e.g. Board hearing transcript, October 15, 2021. Disability evaluations 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 his 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. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered 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 in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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). Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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. The veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's residuals of fracture second right metatarsal is rated as noncompensable, under Diagnostic Code 5284. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. 38 C.F.R. § 4.71a. A 20 percent rating is warranted for moderately severe other foot injuries. Id. A 30 percent rating is warranted for severe other foot injuries. Id. With actual loss of use of the foot, the disability should be rated at the maximum 40 percent. Id. Words such as "severe," "moderately severe," and "moderate," 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. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. "Moderate" is defined as tending toward the mean or average amount of dimension, having average or less than average quality. "Severe" is defined as harsh or of great degree. Merriam-Webster's Collegiate Dictionary (2003). The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). However, there were no amendments made to Diagnostic Code 5284. When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. Turning to the evidence, the Veteran was afforded a VA examination in May 2015. At that time, the Veteran reported he believed his symptoms mainly concerned his right ankle. The Veteran reported right heel and right ankle pain. He endorsed flare-ups of the posterior ankle and heel of the right foot that manifested with pain. Functional loss or functional impairment included walking on the side of his right foot due to his ankle. Upon physical examination in May 2015, there was an indication of swelling on use of the right side; he did not have characteristic callouses. The Veteran tried bilateral orthotics but his residuals of fracture second right metatarsal remained symptomatic. The Veteran had pes cavus that manifested with all toes tending to dorsiflexion bilaterally; without pain nor tenderness, plantar fascia due to pes cavus; and he had marked varus deformity on the right side due to pes cavus. There was evidence of pain on physical examination that contributed to a functional loss. Contributing factors of the disability included pain on movement, instability of station, and interference with standing on the right side; and pain on weight-bearing bilaterally. Pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups when the foot was used repeatedly over a period of time described as lateral foot pain and hell pain that affected prolonged ambulation. There was no other functional loss during flare-ups or when the foot was used repeatedly over a period of time. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran used a prescribed rocker sole to be added to the shoes but the Veteran had not used yet inserted them into his shoes. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The examiner noted the Veteran's residuals of fracture second right metatarsal did not impact his ability to work. A July 2019 private foot conditions Disability Benefits Questionnaire (DBQ) report completed by Dr. V.P. was submitted. At that time, the Veteran described a right ankle injury during service. He reported pain in the right foot that was described as an ache, sharp, and relentless. The Veteran endorsed flare-ups of the right foot that occurred every day and worsened with uneven ground. He reported functional loss as instability, lack of motion, a leg length discrepancy, and resultant hip pain. Dr. V.P. found the Veteran had pes cavus on the right foot that resulted in lateral ankle and foot pain; a shortened plantar fascia on the right side; marked varus deformity on the right side; and commented that there was a congenital cavus with degenerative joint disease and instability with deformity on the right side. Additionally, Dr. V.P. found the Veteran had mild right sided malunion or nonunion of tarsal or metatarsal bones with noted mild deformity in the second metatarsal on films with subtle varus. Dr. V.P. found that the Veteran had severe effects on the right side; that the residuals of fracture second right metatarsal chronically compromised weight-bearing, and that the foot condition required arch supports, custom orthotic inserts or shoe manifestations. In this regard, Dr. V.P. noted the Veteran's residuals of fracture second right metatarsal required something to connect the failed inserts and resulted leg length discrepancy. The Veteran had a foot surgery to reconstruct the cavus of the foot in December 2016 and May 2019. Residual signs or symptoms included connective healing from ankle arthrorisis and that his residuals of fracture second right metatarsal would always manifest with stiffness and significant leg length discrepancy. Upon physical examination in July 2019, Dr. V.P. found there was pain on physical examination of the right foot that contributed to a functional loss. Contributing factors of the disability included less movement that normal; pain on movement; pain on weight-bearing; pain on nonweight-bearing; swelling; deformity; atrophy of disuse; disturbance of locomotion; and interference with standing. Pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or when the right foot was used repeatedly over a period of time due to ankle fusion. Other functional loss during flare-ups when the foot was used repeatedly over a period of time included debilitating pain on the right foot. Other pertinent physical findings included the fusion of the ankle and subtalar joint. The Veteran endorsed the constant use of a cane as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. Dr. V.P. noted the Veteran's right foot impacted his ability to work due to inability to stand; inability to walk any significant distance; inability to squat; inability to kneel; and inability to climb. A May 2020 private treatment record completed by Dr. V.P. was also submitted. At that time, physical symptoms of the right foot included muscle atrophy, joint pain, abnormal gait, abnormal posture due to leg length discrepancy, musculoskeletal deformity, recurrent swelling and rigid stiffness of the ankle and subtalar with evidence of non-union on the ankle joint. Dr. V.P. found that the symptoms and limitations were in line or supported by the objective findings. Additionally, Dr. V.P. found the Veteran should avoid standing, twisting, stooping, bending, crouching or squatting, and balance; should rarely walk with a device; and could occasionally sit with the elevation of the foot. During a typical workday, Dr. V.P. found that the Veteran's pain or other symptoms would be severe enough to interfere with attention and concentration needed to perform even simple work tasks more than 25 percent of the time. Dr. V.P. estimated that the Veteran would likely be absent, arrive late, or leave early from work as a result of the residuals of fracture second right metatarsal more than four days per month. The Veteran's work restrictions were permanent. Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities, to include his residuals of fracture second right metatarsal. However, there is no indication from the treatment notes of record that the Veteran has reported right foot symptoms that are worse than those noted in the various continuing treatment records and VA examination reports of record. Based on the foregoing, the Board finds that an initial 30 percent rating, but not higher, for his residuals of fracture second right metatarsal is warranted. In this regard, the evidence shows that the Veteran's residuals of fracture second right metatarsal manifested in significant and sometimes debilitating pain, with interference with prolonged walking, required insoles, had marked deformity of the right foot, instability, pain on movement, pain with weight-bearing and nonweight-bearing, and inability to squat, kneel, or climb. Notably, at his July 2019 private examination, Dr. V.P. found the Veteran's residuals of fracture second right metatarsal resulted in severe effects with chronically compromised weight-bearing. Additionally of significance, the May 2015 VA examiner found that the Veteran's residuals of fracture second right metatarsal resulted in pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups when the foot was used repeatedly over a period of time described as lateral foot pain and hell pain that affected prolonged ambulation. Accordingly, the Board finds these symptoms most closely approximate severe impairment. However, the Board finds that a higher 40 percent rating is not warranted for his residuals of fracture second right metatarsal at any time during the period on appeal. In this regard, the Veteran's residuals of fracture second right metatarsal has not resulted in actual loss of use of the foot. In this regard, the medical evidence throughout the period on appeal shows that the Veteran's functioning was not so impaired that he would be equally well-served with prosthesis. Additionally, the Veteran reported some remaining function of the right foot, to include being able to walk short distances, albeit with significant restrictions and pain. The Veteran's belief that he is entitled to an even higher rating for his residuals of fracture second right metatarsal is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran's general belief that he is entitled to an even higher rating. Moreover, to the extent that the Veteran alleges that he is entitled to a higher rating due to pain and other symptoms reported, the Board notes that such symptoms are contemplated under the current rating assigned. The Board acknowledges the Veteran's statements that his residuals of fracture second right metatarsal symptoms are more severe than evaluated, to include difficulty with standing, walking, and carrying weight. The Veteran is competent to report his symptoms and has presented credible statements in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board finds, however, that neither the Veteran's statement nor medical evidence demonstrates that the criteria for an initial rating in excess of the 30 percent rating assigned herein have been met. The Board also acknowledges that the Veteran's private and VA treatment records note complaints of and treatment for his residuals of fracture second right metatarsal. However, these records do not address the specific rating criteria necessary to substantiate a higher rating than that assigned herein. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. Nevertheless, the Board acknowledges the Veteran's assertions that his residuals of fracture second right metatarsal results in pain, and also feelings of instability, weakness, and fatigability. However, again, the Board notes that such symptoms are contemplated under the current rating assigned. This argument is therefore without merit. The Board also acknowledges the Veteran's sincerely held belief that his residuals of fracture second right metatarsal symptoms are more severe than currently contemplated. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology and resulting functional difficulties, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has also considered whether a staged rating under Hart v. Mansfield, supra, is appropriate for the Veteran's service-connected residuals of fracture second right metatarsal. However, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating for such disorders is not warranted. Further, the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Therefore, resolving all reasonable doubt in the Veteran's favor, the Board concludes that a 30 percent rating, but not higher, is warranted for the Veteran's residuals of fracture second right metatarsal. To that extent, the appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Entitlement to a TDIU beginning December 1, 2019 is granted. The Veteran asserts that he is entitled to a TDIU. Specifically, he contends that his service-connected residuals of fracture second right metatarsal and right ankle degenerative arthritis result in limitations that prevent him from substantially gainful employment. See VA Form 21-8940, August 1, 2019. Additionally, the Veteran testified at his October 2021 Board hearing that the physical limitations and impairments caused by his residuals of fracture second right metatarsal and right ankle degenerative arthritis resulted in inability to work as a commercial electrician due to being unsafe, unstable, and could no longer work since December 2016. See Board hearing transcript, October 15, 2021. At his October 2021 Board hearing, the Veteran's attorney asserted that the continued issues and progressive nature of his orthopedic problems, specifically in the right foot, right ankle, and hip prevented the Veteran to complete full or part-time employment on a consistent basis. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 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. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, supra. Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the instant case, as of the date of this decision, service connection is currently in effect for degenerative arthritis of the right ankle rated as 10 percent disabling prior to December 15, 2016 and from February 1, 2017 to May 16, 2019, 30 percent disabling beginning December 1, 2019, and 100 percent for all other periods; osteoarthritis of the left hip rated as 100 percent disabling prior to December 1, 2019, and 30 percent thereafter; residuals of fracture second right metatarsal, rated as 30 percent disabling from March 31, 2014; right leg length discrepancy, rated as 10 percent disabling from December 15, 2016; surgical scars of the right ankle, rated as noncompensable from December 15, 2016; and scar of the left hip, rated as noncompensable from August 2, 2019. The Veteran's combined rating is 40 percent prior to December 15, 2016; 100 percent from December 15, 2016 to February 1, 2017; 50 percent from February 1, 2017 to May 16, 2019; 100 percent from May 16, 2019 to December 1, 2019; and 70 percent thereafter. Thus, the schedular criteria for a TDIU have been met beginning December 1, 2019. To the extent that the limitations of the Veteran's residuals of fracture second right metatarsal are discussed above, the Board incorporates such herein. In support of his claim, the Veteran submitted a Veterans Application for Increased Compensation Based on Unemployability. See VA Form 21-8940, August 1, 2019. The Veteran indicated his right ankle and his right foot prevented him from securing or following any substantially gainful occupation. He reported he earned $66,414.00 as the maximum amount he had earned as in 2009 as an electrician. The Veteran indicated he left his last job due to his disability and he became too disabled to work on December 16, 2016. His highest level of education completed was a high school diploma. The Veteran testified at his October 2021 Board hearing that he had not worked since December 2016 and had previously worked as a commercial electrician. He testified that he mostly worked at sewer plants and water treatment plans that required climbing ladders and using stairs. However, due to his right foot and right ankle, he could no longer climb stairs nor ladders. Additionally, due to his physical impairments, the Veteran testified that he could ambulate on flat surfaces for a short period of time until pain prevented him from continuing. He used a cane for ambulation and would often lose his balance. The Veteran testified that he had two significantly different foot sizes, the right being larger than the left, and that he had a leg length discrepancy. Therefore, he was prevented from twisting, stooping, bending down, crouching, squatting, balancing, and he would have to take frequent breaks during the day. He testified that he had difficulty with prolonged standing, required sitting, and that the pain would interfere with his concentration and attention during the workday. The Veteran testified that his work as a commercial electrician was more dangerous than that of a residential electrician due to the wattage and machinery used, and thus, he was considered unfit to continue working due to his instability and physical impairments. Here, the evidence supports a finding that the Veteran is precluded by his service connected disabilities from obtaining and maintaining gainful employment consistent with his education, experience, and skillset beginning December 1, 2019. The Veteran's highest level of education and current employment status and/or employment history is discussed above. During service, the Veteran's military occupational specialty (MOS) included vehicle operator and dispatcher. The ultimate question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The private evaluation submitted by Dr. V.P. noted the Veteran had functional impairments from his service-connected right foot and right ankle disorders that would preclude him from sustaining the requirements and demands of employment. Specifically, Dr. V.P. noted that the physical symptoms included muscle atrophy, joint pain, an abnormal gait, abnormal posture due to leg length discrepancy, a musculoskeletal deformity, recurrent swelling and rigid stiffness of the ankle and subtalar with evidence of non-union on the ankle joint. Additionally, Dr. V.P. noted the Veteran's pain or other symptoms would be severe enough to interfere with attention and concentration needed to perform even simple work tasks more than 25 percent of the time and estimated that the Veteran would likely be absent, arrive late, or leave early from work as a result of the residuals of fracture second right metatarsal more than four days per month. Dr. V.P. found that such work restrictions were permanent. Dr. V.P. noted the Veteran's reports of physical impairments and resulting psychiatric symptoms and the effects of such in combination of the Veteran's physical impairments on his occupational functioning. Moreover, this provider noted the reports from the Veteran regarding his occupational skills gained, educational history, and occupational history. The Board has carefully considered the Veteran's statements, and the medical evidence of record, regarding the combined effects of his right foot and right ankle as they impact his employment. The Board concludes that the Veteran experienced significant limitation as a result of the combination of his service-connected right foot and right ankle, and that the combined effect of these disabilities impacted his daily functioning and earning capacity that rendered the Veteran unable to secure or follow a substantially gainful occupation beginning on December 1, 2019. Generally, the fact that he was having impairments or difficulties does not provide a basis to grant TDIU. However, based on the evidence as discussed above, the Board notes the combined effects of his physical impairments as a result of his right ankle and right foot, to include difficulty lifting, pain, inability to ambulate prolonged distances, instability, frequent imbalance, and difficulty maintaining concentration and focus, render the Veteran essentially unemployable in all employment settings. Therefore, based on the foregoing, the Board finds that the combined effects of the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation and entitlement to a TDIU from December 1, 2019 is warranted. To that extent, the appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 3. Entitlement to a TDIU from December 15, 2016 to February 1, 2017 and from May 16, 2019 to December 1, 2019 is dismissed as moot. As noted above, in the instant case, as of the date of this decision, service connection is currently in effect for degenerative arthritis of the right ankle rated as 10 percent disabling prior to December 15, 2016, from February 1, 2017 to May 16, 2019, 30 percent disabling beginning December 1, 2019, and 100 percent for all other periods; osteoarthritis of the left hip rated as 100 percent disabling prior to December 1, 2019, and 30 percent thereafter; residuals of fracture second right metatarsal, rated as 30 percent disabling from March 31, 2014; right leg length discrepancy, rated as 10 percent disabling from December 15, 2016; surgical scars of the right ankle, rated as noncompensable from December 15, 2016; and scar of the left hip, rated as noncompensable from August 2, 2019. The Veteran's combined rating is 40 percent prior to December 15, 2016; 100 percent from December 15, 2016 to February 1, 2017; 50 percent from February 1, 2017 to May 16, 2019; 100 percent from May 16, 2019 to December 1, 2019; and 70 percent thereafter. Therefore, the Veteran's combined rating for the appeal period from December 15, 2016 to February 1, 2017 and from May 16, 2019 to December 1, 2019 is 100 percent. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Generally, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or a combination of disabilities pursuant to the rating schedule, there is no need, and no authority to otherwise rate that Veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of 100 percent rating does not always render the issue of TDIU moot. Specifically, special monthly compensation (SMC) may be warranted if the veteran has a 100 percent rating for a single disability and VA finds that TDIU is warranted based solely on the disability other than the disability that is rated on 100 percent. See Bradley v. Peake, 22 Vet. App. 280 (2008). However, per the August 2019 VA Form 21-8940 and his October 2021 Board hearing testimony, there is no allegation that other combined disabilities render the Veteran unemployable from December 15, 2016 to February 1, 2017, and from May 16, 2019 to December 1, 2019. Specifically, the Veteran himself asserts that he is unemployable as a result of the combination of his service-connected right ankle degenerative arthritis, which is rated at 100 percent from December 15, 2016 to February 1, 2017, and from May 16, 2019 to December 1, 2019; and as a combination of his service-connected for residuals of fracture second right metatarsal is granted. Therefore, the issue of entitlement to a TDIU for these time frames are moot as the Veteran has been in receipt of a schedular rating of 100 percent for right ankle degenerative arthritis from December 15, 2016 to February 1, 2017 and from May 16, 2019 to December 1, 2019. REASONS FOR REMAND 4. Entitlement to a TDIU, to include as on an extraschedular basis, from February 1, 2017 to May 16, 2019, is remanded. The Veteran seeks entitlement to TDIU from February 1, 2017 to May 16, 2019, to include as on an extraschedular basis. As noted above, the Veteran's contends that his service-connected right ankle degenerative arthritis and residuals of fracture second right metatarsal rendered him unemployable since December 2016, when he last worked full time. Again as noted above, the Veteran did not meet the schedular criteria for a TDIU from February 1, 2017 to May 16, 2019 that is, he did not have one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and a combined rating of 70 percent or higher, TDIU on a schedular basis must be denied. However, where a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). However, the Board recognizes that 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. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the TDIU schedular requirements, rating boards will submit the case to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). After a thorough review of the evidence of record, the Board finds that remand is warranted for referral to the Director of the Compensation Service. In relevant part, the record suggests that, from February 1, 2017 to May 16, 2019, the Veteran had difficulty lifting, weigh-bearing, standing, and walking due to his service-connected disabilities. His specific arguments and testimony are noted above. Accordingly, in light of these limitations, the AOJ is instructed to refer the TDIU claim for the appeal period from February 1, 2017 to May 16, 2019, to the Director, Compensation Service for extraschedular consideration. The matter is REMANDED for the following action: 1. The AOJ should submit the claim for a TDIU for the appeal period from February 1, 2017 to May 16, 2019 to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). 2. Thereafter, the claim should be readjudicated. If the claim remain denied, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and provided with the appropriate opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.