Citation Nr: 23041271 Decision Date: 07/27/23 Archive Date: 07/27/23 DOCKET NO. 09-33 607 DATE: July 27, 2023 ORDER Entitlement to an evaluation in excess of 10 percent for bilateral plantar fasciitis with pes planus prior to December 6, 2017, is denied. Entitlement to an evaluation in excess of 30 percent for bilateral plantar fasciitis with right foot pes planus from December 6, 2017, to May 31, 2021, is denied. Entitlement to a compensable evaluation for bilateral plantar fasciitis with right foot pes planus on or after June 1, 2021, is denied. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to December 6, 2017, is denied. FINDINGS OF FACT 1. The Veteran cancelled a scheduled VA examination that was necessary to establish entitlement to the bilateral foot disability increased evaluation claim on appeal, and he has not requested that the examination be rescheduled or provided good cause. 2. The Veteran did not meet the schedular criteria for TDIU until September 2, 2009. For the portion of the appeal period prior to that time, there is insufficient evidence to substantiate a reasonable possibility that he was unemployable because of his service-connected disabilities. 3. The Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation for any time period on appeal. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for bilateral plantar fasciitis with pes planus prior to December 6, 2017, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.655. 2. The criteria for an evaluation in excess of 30 percent for bilateral plantar fasciitis with right foot pes planus from December 6, 2017, to May 31, 2021, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.655. 3. The criteria for a compensable evaluation for bilateral plantar fasciitis with right foot pes planus on or after June 1, 2021, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.655. 4. The criteria for TDIU prior to December 6, 2017, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to February 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA). In a June 2009 rating decision for the appeal, the agency of original jurisdiction (AOJ) combined the left and right foot pes planus for rating purposes (where the right foot pes planus was previously evaluated with the right foot talocalcaneal osteoarthritis with tendonitis (right ankle disability)) and assigned a 10 percent evaluation for the disability effect from the date of the claim for increase. The AOJ recharacterized the bilateral foot disability and increased the evaluation on other occasions, as reflected in the issues above. See rating decisions from October 2016 (bilateral plantar fasciitis with pes planus) and February 2018 (bilateral plantar fasciitis with right foot pes planus, increased to 30 percent effective from December 6, 2017). The Board notes that the disability in its various characterizations is also referred to as bilateral foot disability in this decision. The Board remanded the case in April 2013 to schedule the Veteran for a hearing. The requested hearing was held before the undersigned Veterans Law Judge in July 2013. The Board was unable to produce a written transcript of the hearing due to technical difficulties making the audio recording unavailable. In an October 2013 letter, the Board notified the Veteran of this information and offered him the opportunity for a new hearing. The Board also notified the Veteran that, if he did not respond in 30 days from the date of the letter, it would assume that he did not want another hearing and would proceed with review of the case. The Veteran did not respond to that letter, and he has not otherwise requested a new hearing. Therefore, there is no outstanding hearing request. The Board remanded the case for further development in December 2013. In an April 2016 decision, the Board denied the appeal, which consisted of the bilateral foot disability claim at that time (then characterized as entitlement to an evaluation in excess of 10 percent for bilateral pes planus). The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2016, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties that same month and remanded the case to the Board. The Board remanded the case for further development in May 2017, including for the purpose of developing the issue of entitlement to TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), for reasons detailed in that decision. In a June 2018 decision, the Board dismissed the issue of entitlement to TDIU on or after December 6, 2017, and remanded the issue of entitlement to TDIU prior to that time, as well as the bilateral foot disability increased evaluation claim, for further development. While the case was in remand status, the AOJ proposed and took final action to reduce the evaluation for the bilateral foot disability from 30 percent to noncompensable effective from June 1, 2021. See rating decisions from December 2020 and March 2021. The Veteran did not challenge the propriety of the rating reduction, and as such, that issue is not in appellate status. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The Board remanded the case again for further development in August 2021. The requested development was completed to the extent possible, and the case has since returned to the Board for appellate review. Law and Analysis Initially, the Board finds that VA's duty to assist has been met as to obtaining records. In response to the Board's remands, the AOJ sent letters to the Veteran to identify and provide authorization forms for any additional non-VA health care providers and obtained Social Security Administration (SSA) and VA treatment records. See AOJ letters from January 2014 to August 2021. The Board also finds that VA's duty to assist has been met as to obtaining VA examinations or medical opinions to the extent possible. The AOJ provided the Veteran new VA examinations in response to the Board's December 2013 to June 2018 remands based on the Veteran's report that his bilateral foot disability had increased in severity since the last examination and then to ensure adequate findings were obtained. The AOJ attempted to schedule the Veteran for an additional VA examination in response to the August 2021 remand to similarly ensure adequate findings were obtained, but he did not cooperate with that effort, as discussed in detail below. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. 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). Increased Evaluations - Bilateral Foot Disability 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 entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with a claim for increase, the claim shall be denied absent a showing of good cause. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. 38 C.F.R. § 3.655(a), (b). Thus, when a claimant does not participate in a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the claimant lacked good cause to miss the scheduled examination. See Turk v. Peake, 21 Vet. App. 565 (2008). In this case, the bilateral foot disability claim on appeal is one for a claim for increase. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to increased evaluations for the bilateral foot disability. In the remands prior to August 2021, the Board found that additional VA examinations were needed. In the August 2021 remand, the Board found that the VA examination reports and medical opinions of record were not adequate to evaluate the bilateral foot disability, detailing relevant findings in support of that determination. The Board instructed the AOJ to provide the Veteran with an additional VA examination and medical opinion that addressed the nature and severity of the disability throughout the appeal period. In response to the August 2021 remand, the AOJ scheduled the Veteran for the requested VA examination; however, the record shows that the examination was cancelled at his request. See October 2021 VA examination request and January 2022 cancellation memorandum; February 2022 email correspondence between AOJ and contract examination provider (clarification that Veteran cancelled January 2022 examination). The AOJ then sent letters to the Veteran in February 2022 and March 2022 notifying him that it had been informed of his cancellation of the examination. In the first letter, the AOJ referenced the provisions of 38 C.F.R. § 3.655, providing an online link to the full text, as well as notifying him that failure to report without good cause would result in denying the increased evaluation claim appeal. In the second letter, the AOJ requested that the Veteran respond as to whether he was willing to attend an examination, including whether he would prefer to attend at a later date due to COVID concerns. The AOJ later called the Veteran in an attempt to reschedule the examination and left messages. See April 2022 report of general information. The Veteran did not respond to the AOJ's letters or telephone calls. The AOJ readjudicated the claim in a May 2022 supplemental statement of the case (SSOC), and copies were sent to the Veteran and his representative. The AOJ indicated that the Veteran cancelled the examination and did not provide good cause or request that the examination be rescheduled. While not dispositive in this case, the Board notes that the AOJ denied the claim based on the evidence of record, rather than denying the claim for increase as a matter of law under 38 C.F.R. § 3.655. The Board finds that this error was harmless, however, as the Veteran was previously made aware of the consequences for failing to report for a scheduled VA examination through the AOJ's letter discussing 38 C.F.R. § 3.655, as noted above, with the regulation provided again in the May 2022 SSOC. In adjudicating the claim based on the evidence of record, the AOJ afforded the Veteran greater consideration than the claim warranted under the circumstances. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Veteran and his representative were then provided an opportunity to respond to the May 2022 SSOC. Notably, the representative did not address the matter in the June 2023 post-remand appellate brief. In fact, the representative outlined the efforts made by the AOJ to schedule the examination instead. In summary, the Board finds that the Veteran cancelled a scheduled VA examination that was necessary to establish entitlement to the bilateral foot disability increased evaluation claim on appeal, and he has not requested that the examination be rescheduled or provided good cause. See Turk v. Peake, 21 Vet. App. 565, 568 (2008) (when a claimant does not participate in a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the claimant lacked good cause to miss the scheduled examination). The "duty to assist is not always a one-way street," and the Veteran has an obligation to actively participate in the retrieving of any information pertinent to his claim, to include attending scheduled VA examinations. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Based on the foregoing, the Board concludes that the bilateral foot disability increased evaluation claim must be denied. 38 C.F.R. § 3.655(b). TDIU All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Board is precluded from assigning an extraschedular TDIU evaluation in the first instance, but it must specifically adjudicate the issue of whether referral for AOJ consideration of such is warranted. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16(b). The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). If the Board declines a referral, it must make two determinations in its decision: (1) that a referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities; and (2) that TDIU benefits are not warranted because service-connected disabilities did not render the veteran unemployable. Snider v. McDonough, 35 Vet. App. 1 (2021). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to TDIU prior to December 6, 2017. Initially, the Board notes that, although the TDIU issue became part of the appeal as part and parcel of the bilateral foot disability increased evaluation claim, it will not be addressed under the provisions 38 C.F.R. § 3.655 because there is otherwise adequate evidence of record to consider this issue. The Veteran is service-connected for major depressive disorder (previously evaluated as dysthymia) (30 percent disabling prior to September 2, 2009, 50 percent disabling from September 2, 2009, to May 19, 2016, and 100 percent disabling thereafter), traumatic arthritis of the sacroiliac joint status post open reduction and internal fixation (ORIF) with associated lumbar spine degenerative joint disease (previously evaluated as residuals, ORIF of pubic symphysis, with traumatic arthritis of the sacroiliac joint) (10 percent disabling prior to December 2, 2011, and on or after January 1, 2017, and 20 percent disabling from December 2, 2011, to December 31, 2016), right foot talocalcaneal osteoarthritis with tendonitis (10 percent disabling), left lower extremity and right lower extremity radiculopathy associated with the sacroiliac joint/lumbar spine disability (each 10 percent disabling effective from December 2, 2011), residuals of laceration of the upper lip (noncompensable), scars, perineal/inguinal laceration and suprapubic status post ORIF surgery (previously evaluated as residuals, perineal/inguinal laceration) (noncompensable), and the bilateral foot disability (noncompensable prior to June 14, 2007, 10 percent disabling from June 14, 2007, to December 5, 2017, 30 percent disabling from December 6, 2017, to May 31, 2021, and noncompensable thereafter). See rating decisions and codesheets from 1992 to 2021. The combined evaluation was 40 percent and then 50 percent prior to September 2, 2009, and 70, 80, and then 100 percent thereafter for the remainder of the time period on appeal. Even considering combinations of disabilities as one disability for TDIU basic eligibility purposes under 38 C.F.R. § 4.16(a) as disabilities resulting from a common etiology or single accident, the Veteran did not meet the schedular criteria for TDIU until September 2, 2009. The Veteran has contended that he has been unable to secure or follow a substantially gainful occupation due to limitations from his service-connected disabilities other than the residuals of laceration of the upper lip and scars. He asserted that the disabilities affected his full-time employment and that he became too disabled to work in mid-May 2015 on the TDIU application forms. He also reported that he had worked at two companies from October 2009 to May 2015 in computer work based on a request for all employment for the last five years. See June 2016 VA Forms 21-8940. Regarding his employment history, the record shows that the Veteran performed various jobs during his military service, including as a squad leader/trainer/instructor (training and supporting troops on Bradley fighting vehicles, buses, and trucks) and as a company clerk (working on files, computer inventory, and supply orders). Following service, he owned his own lawn service business and worked as a truck driver/delivery person. In early 2007, he sought vocational rehabilitation and employment (now veteran readiness and employment) (VR&E) services after a work injury in July 2006 during which he suffered a right foot crush injury from being run over by a truck. During the April 2007 initial VR&E appointment, he reported that he had been employed by the same truck company for over five years, but that his leg brace from the work injury had become a hinderance in his ability to operate trucks. He indicated that he was being employed around the office to do other things, but the required walking back and forth with the cast caused further aggravation to his leg. The VA counseling psychologist completing the narrative report noted that a May 2007 functional capacity evaluation revealed that the Veteran appeared safe and capable in performing light duty work, and his vocational compatibility fell within the light duty physical demand level. It was also noted that the Veteran expressed a strong interest in computer-related areas, as he reported a history of working on computers all of his adult life, learning to tear them down and rebuild them, as well as determining how to repair defective software problems. In July 2007, the Veteran began a college program to obtain an associate degree of applied science, computer network systems technology, as part of his VR&E plan; he successfully completed the program and was awarded the degree in June 2008, also receiving an academic achievement award for his grade point average. The Veteran was deemed job ready by his VR&E counseling psychologist shortly thereafter, but the record shows that he reported in late 2008 that he would be undergoing surgery for nonservice-connected carpal tunnel syndrome and would not be seeking employment for an undetermined period of time. See, e.g., December 2005 historical VA mental health examination report (work history, including Veteran's report that he had never had a problem in his employment and was able to function at his job despite issues such as being depressed all the time and sleeping about two hours a night) and August 2006 private treatment record (treatment related to work injury the month prior); VR&E folder entries from March 2007 (new application showing current work as driver earning $2000 monthly), April 2007 (rehabilitation needs inventory (RNI) report where Veteran reported service work history supported by record of assignments in service personnel records and post-service work history; reported currently earning $1995 on average monthly but wanting to receive more eduction to obtain a job that was less stressful on his body), May 2007 (functional capacity evaluation report), July 2007 (narrative report for initial counseling beginning in April 2007), July 2007 (Hallmark Institute of Technology enrollment information memorandum), June 2008 (diploma, certificate of achievement, and transcript), September 2008 (memorandum documenting job ready status), and November 2008 (memorandum from Texas Veterans Commission Disabled Veterans Outreach Program (DVOP) reporting upcoming surgery and job seeking status); VA treatment records from August 2008, October 2008, December 2008, and October 2009 (pre- and post-surgical appointments for carpal tunnel surgery). The record shows that the Veteran also sought SSA disability benefits in mid-2007 following the July 2006 work injury, but SSA denied the claim later that same year. In so doing, SSA found that a return to the Veteran's past work as a truck driver was not possible; however, it also found that the evidence did not show that his ability to perform basic work activities was as limited as he indicated, and his condition did allow for other, less demanding work. See October 2007 SSA determination with explanation. The Board notes that some of the SSA records (and some VA treatment record notations) indicate that the Veteran stopped working in 2006; however, the Veteran's own reports elsewhere in the record show that this information refers to when he was injured and became unable to drive a truck. He was transferred to office work with his company before starting school, as noted above, and other SSA documents show the Veteran's continued work history after that time. During the September 2007 SSA disability evaluation, he reported that he could stand for approximately one hour on the job and could sit for a couple of hours before his foot began to hurt. In a January 2015 VR&E closure report, it was noted that the Veteran reported that his health was deteriorating and that he could not return to work in February 2010, but attempts made to contact him were unsuccessful. Nevertheless, the record does not indicate that the Veteran stopped working around that time. For example, his reported work history in the second June 2016 TDIU application form and his October 2016 and June 2017 employer's written statements from that time period provide affirmative evidence to the contrary; the first TDIU application form leaves the time lost from illness sections blank. An August 2010 VA treatment record for a psychosocial assessment shows that the Veteran reported being currently employed, interested in working, not having been considered unemployable due to a disability, and not having a recent income drop. He also reported that he was working towards a bachelor's degree in the same field as his associate degree from the same college; he did not have physical disabilities that affected his mobility; and he was able to use public transportation to get around the city. The October 2016 and June 2017 written statements from the Veteran's employers confirm the information regarding his employment from October 2009 to May 2015 as reported and indicate no concessions were made by reason of age or disability. The first employer indicated that the Veteran's position was terminated due to a reduction in force, and the second employer indicated that he was laid off due to the loss of the contract award with a payment made for his remaining personal time off. The Veteran checked the box indicating that he did not leave his last employment because of his disability on both June 2016 TDIU application forms. In addition, the record shows that the Veteran completed additional certification courses while he was working, and he actively sought work and completed trainings after he was released from his position in 2015. See, e.g., VR&E folder entries from November 2013 and August 2015 (annual review report and feasibility memorandum), August 2015 (RNI report and supplemental information form showing Veteran reported performing activities during periods of unemployment three months or longer, including aggressive job searches, attending webinars, going to classes on getting hired, and pursing leads; reported willing to work eight to twelve hours a day, five days a week and willing to relocate to another state for a job); VA treatment records from August 2015 (reported mood poor since being out of work), September 2015 (reported attending job fairs and submitting resume to various employers since his employment ended last May; expressed interest in compensated work therapy (CWT) program), September 2015 (assessment for CWT program with goal of "getting back to work again"), and November 2015 (reported interviewing but had not heard back from the VA work program). In fact, the first September 2015 VA treatment record shows that the Veteran reported that he was doing "much better mentally" when he had the focus of a job to go to every day. A July 2017 VA treatment record also shows that the Veteran expressed an interest in the CWT program to help him find work that would be a good fit for his preferences, such as minimal interaction with others and low stress. The 2007 to 2017 VA examination reports for the Veteran's various service-connected disabilities similarly show that he has functional impairment due to his claimed physical disabilities that would affect his ability to work in jobs with physical requirements (such as limitations on prolonged walking and standing, limitations on lifting, and needing some breaks while sitting), as well as functional impairment due to his major depressive disorder. The September 2013 Disability Benefits Questionnaire (DBQ) foot and back evaluation reports note similar limitations. However, these reports do not suggest that the has been unemployable. Regarding the major depressive disorder, the Board notes that the Veteran has been evaluated with a total (100 percent) evaluation for the disability since May 2016, and as such, any TDIU considerations after that time would be based on the remaining service-connected disabilities; however, the Board has considered evidence dated after that time for the major depressive disorder that relates to the Veteran's employment picture for the earlier period. For example, the August 2016 VA examiner noted that the Veteran's employment history indicated no history of objective work-related impairment. She further noted that he described his prior work-environment as "stressful," but he noted no missed work or disciplinary action secondary to mental health symptoms. The examiner explained that there was evidence to suggest that the Veteran struggled with interpersonal relationships, with increased anger and irritability in some social situations, which may negatively affect his ability to engage appropriately with both co-workers and supervisory staff; however, she further explained that he may benefit from an independent work environment with minimal distractions. In addition, the examiner noted that the Veteran may require additional time to complete requisite tasks and that a structured environment with clear responsibilities and expectations was likely to increase his occupational effectiveness. To the extent that the Veteran reported during the October 2009 VA mental health examination that he had not worked since 2006 and was no longer able to work due to pain and emotional difficulties, it appears that he reported this information in the context of why he was no longer a truck driver based on review of the rest of the report along with the remainder of the record, including his own reports - and that examination was conducted several days before he began the first job listed on his TDIU application forms. Based on the foregoing, the Board finds that a referral for extraschedular TDIU consideration is not warranted for the portion of the appeal period prior to September 2, 2009, as there is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable because of his service-connected disabilities. The Board acknowledges that the Veteran made a transition from truck driving to work with less physical requirements following his on-the-job injury, and he was service-connected for right foot and ankle disabilities at that time; however, even after that incident, he was able to maintain substantially gainful employment with the same company by working in an office setting, as well as successfully pursue an associate degree. He reported a history of working on computers throughout his adult life prior to attending that program, as well as other office-related work as a company clerk during service, which provided him prior experience in an office setting. The VR&E service determined that he was job ready, but he reported delaying job searching until he was treated for his nonservice-connected carpal tunnel syndrome. Indeed, the Veteran did not claim that he was unemployable until mid-2015 in the June 2016 TDIU applications. He also claimed SSA disability benefits based on his July 2006 work injury/right foot and ankle problems and nonservice-connected high blood pressure, but not due to any other problem related to other service-connected disabilities, including his major depressive disorder or sacroiliac joint/lumbar spine disability. In October 2007, SSA specifically indicated that the Veteran was capable of doing less physically demanding work, considering his age, education, and work history, and it advised him to contact any SSA office if his condition became worse and kept him from working. See, e.g., SSA disability report; see also Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (SSA decisions regarding unemployability are not controlling for VA determinations, but are relevant to determination of appellant's ability to secure and follow a substantially gainful occupation). The record does not indicate that the Veteran refiled for SSA disability benefits, and he was in the process of completing his associate degree at the time of the SSA determination. In other words, the threshold standard for such a referral has not been met in this case based on the affirmative evidence showing otherwise. The Board also finds that the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation for any time period on appeal. The Veteran undoubtedly experienced industrial impairment as a result of his service-connected disabilities, as evidenced by the 40, 50, 70, 80, and 100 percent evaluations. However, the evidence does not establish that his service-connected disabilities precluded all forms of gainful employment. The Board acknowledges the Veteran's reported difficulties with physical jobs and interpersonal relationships; however, he was able to maintain employment in an office setting and successfully complete a degree program and certification courses and other trainings throughout the appeal period despite his challenges from his service-connected disabilities. He was relieved of his most recent position in mid-2015 because of a company-related financial issue, rather than his own performance, and the record as discussed above confirms that he actively pursued employment opportunities after that time. The Board also notes that "[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1; see also Van Hoose, 4 Vet. App. at 363 (noting that the disability rating itself is recognition that industrial capabilities are impaired; the record must reflect some factor which takes the case outside the norm) and 38 C.F.R. § 4.15. Moreover, the Veteran has not indicated that he required any workplace accommodation. To the extent that the August 2016 VA mental health examiner indicated that the Veteran may require accommodations such as additional time to complete requisite tasks, a TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017) (Lance, J., concurring) ("Where a claimant's employer is required by law to provide reasonable accommodations pursuant to the [Americans with Disabilities Act (ADA)] and those accommodations allow the claimant to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer."). Based on the foregoing, the Board concludes that the criteria for TDIU prior to December 6, 2017, have not been met on either an extraschedular or schedular basis. Because the evidence persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Postek, 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.