AMPUTATION OF THE GREAT TOE

U. R. POWELL · 2020 · Case ID: 20061723

MIXED

Summary

The veteran, who served from April 1977 to February 1979, had his appeal for an increased rating for his service-connected right great toe disability considered. The veteran passed away in August 2018, and his surviving spouse is the claimant. The primary issue was whether the veteran was entitled to an increased rating for his right great toe, which had undergone multiple surgeries and was described as non-functional and "frozen." The Board reviewed VA examinations from 2010, 2016, and 2017, noting the veteran's reports of pain, stiffness, abnormal gait, and inability to move or use the toe effectively. The Board found that the veteran's disability picture, characterized by functional impairment comparable to amputation with metatarsal head removal, warranted a 30 percent rating by analogy under DC 5171, an increase from the previous 10 percent rating. The Board also considered entitlement to Total Disability based on Individual Unemployability (TDIU). The veteran sought TDIU based on his service-connected disabilities, including the right great toe, hearing loss, and tinnitus. However, the Board found that the evidence did not establish that the combined service-connected disabilities precluded the veteran from securing or following substantially gainful employment, considering his education and work history. The Board noted the veteran's college education and electronics training, and his ability to work as a truck driver until 2015, despite limitations. Therefore, the TDIU claim was denied.

Rationale

Multiple surgeries for hallux valgus; Non-functional and painful great right toe; Rated by analogy to amputation under DC 5171

Special Benefit

ACCRUED BENEFITS; TDIU

Diagnostic Code

5171

Docket No.

12-33 854A

Full Decision Text

Citation Nr: 20061723
Decision Date: 09/21/20 Archive Date: 09/21/20

DOCKET NO. 12-33 854A
DATE: September 21, 2020

ORDER

Entitlement to an increased rating of 30 percent, but no higher, for right great toe disability, rated analogous to amputation of the great toe under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5171, previously evaluated as post-operative right great toe with prostheses under 38 C.F.R. § 4.72, DC 5280, is granted.

Entitlement to a total disability evaluation based on individual unemployability TDIU) due to service-connected disabilities, to include on an extra-schedular basis, for the purpose of accrued benefits, is denied.

FINDINGS OF FACT

1. The most probative evidence of record shows that throughout the rating period on appeal, the Veteran’s right great toe disability was manifested by symptoms productive of functional impairment analogous to amputation of the great right toe with removal of the metatarsal head.

2. The probative evidence of records does not demonstrate that it is at least as likely as not that the Veteran was precluded from securing or following all forms of substantially gainful employment due to his service-connected right great toe, hearing loss and tinnitus disabilities.

CONCLUSIONS OF LAW

1. The criteria for a 30 percent rating, but not higher, for right great toe disability, rated analogous to right great toe amputation, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10. 4.40, 4.45, 4.49, DC 5171.

2. The criteria for entitlement to a TDIU due to service-connected disabilities, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1977 to February 1979.

Unfortunately, the Veteran died in August 2018. The appellant is the Veteran’s surviving spouse and has been properly substituted as the claimant. See April 1, 2019 Regional Office (RO) administrative decision. The appellant is seeking entitlement to an increased rating for the Veteran’s right great toe disability, for the purpose of accrued benefits, and her Application for Dependency and Indemnity Compensation (DIC), Death Pension, and/or Accrued Benefits was received in September 2018.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to an evaluation in excess of 10 percent for service-connected post-operative right great toe with prostheses.

During the pendency of the appeal, a July 2014 rating decision continued a 10 percent rating for post-operative right great toe with prostheses. Thereafter, an August 2016 rating decision recharacterized the Veteran’s right toe disability as right great toe amputation and continued a 10 percent evaluation. In a July 2017 Board decision, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board found that the issue of entitlement to a TDIU for the entire appeal period was also in appellate status, as it stems from the Veteran’s claim for an increased rating for right great toe amputation received on January 29, 2010. Pursuant to the duty to assist, the Board then remanded the appeal for additional development.

In October 2016, the Veteran appeared at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claim file.

The case has been returned to the Board for review. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

1. An increased rating of 30 percent for great right toe disability is granted.

The appellant seeks an increased rating for the Veteran’s service-connected right great toe disability, currently rated as 10 percent disabling under 38 C.F
the Board then remanded the appeal for additional development.

In October 2016, the Veteran appeared at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claim file.

1. An increased rating of 30 percent for great right toe disability is granted.

The appellant seeks an increased rating for the Veteran’s service-connected right great toe disability, currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5171, as analogous to right toe amputation without metatarsal involvement from August 15, 2016. See Statement in Support of Claim dated and received in January 2010 and Application for DIC, Death Pension, and/or Accrued Benefits received in September 2018. The Veteran’s right great toe disability was previously rated under 38 C.F.R. § 4.72, DC 5280 (for rating unilateral hallux valgus) as 10 percent disabling prior to August 15, 2016. A 10 percent rating under DC 5280 is the maximum schedular rating assignable under that Diagnostic Code for operated unilateral hallux valgus with resection of the metatarsal head, or severe unilateral hallux valgus if equivalent to amputation of the great toe. The Veteran’s increased rating claim was received on January 29, 2010. Therefore, the relevant rating period is from January 29, 2009, one year prior to receipt of the claim, through the present, if increased disability is demonstrated during the one year prior to receipt of the claim. See 38 C.F.R. § 3.400 (o) (2).

Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).

The Board notes that when a disorder is not specifically listed in the rating tables, it can be rated by analogy in order to maximize the Veteran’s benefits. 38 C.F.R. §§ 4.7, 4.20. Here, the RO found that, for the period prior to August 15, 2016, the manifestations and functional impairment due to the Veteran’s service-connected right great toe disability were adequately contemplated by 38 C.F.R. § 4.72, DC 5280, and assigned him a 10 percent rating under DC 5280. For the period from August 15, 2016, the RO found that his great right toe disability was no longer most appropriately rated under DC 5280 and rated it by analogy to 38 C.F.R. § 4.71a, DC 5171, which rates amputation of the great toe. A 10 percent rating was continued under DC 5171. The Board finds that although the Veteran did not have amputation of the great right toe at any time during the appeal period, due to the lack of function of the right great toe throughout the appeal period, such disability should be rated analogous to amputation under DC 5171 throughout the appeal period. Under DC 5171, a 10 percent rating
For the period from August 15, 2016, the RO found that his great right toe disability was no longer most appropriately rated under DC 5280 and rated it by analogy to 38 C.F.R. § 4.71a, DC 5171, which rates amputation of the great toe. A 10 percent rating was continued under DC 5171. The Board finds that although the Veteran did not have amputation of the great right toe at any time during the appeal period, due to the lack of function of the right great toe throughout the appeal period, such disability should be rated analogous to amputation under DC 5171 throughout the appeal period. Under DC 5171, a 10 percent rating is assigned for amputation of the great toe, without metatarsal involvement; and a maximum 30 percent rating is assigned for amputation of the great toe, with removal of the metatarsal head. 38 C.F.R. § 4.71a, DC 5171.

In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

The Board finds that the evidence in this case warrants a 30 percent rating for the Veteran’s right great toe disability under 38 C.F.R. § 4.71a, DC 5171.

The record shows that the Veteran underwent multiple surgeries on his right toe from 1979 for hallux valgus, including a bunionectomy with resection of his right great toe in-service in 1979; arthroplasty of the great right toe with a toe prosthesis in 1980, following which the prosthesis was then removed; and arthrodesis in 1981. The Board notes, that while the Veteran has had multiple surgeries on his right great toe, and that although he testified at the October 2016 Board hearing that his right great toe, including the metatarsal head of the bone, had been amputated, in fact, his great right toe remains attached. See September 2017 VA examination for Amputations.

The Veteran had a VA examination for foot conditions in September 2010. The Veteran reported pain in his great right toe and an inability to walk far or participate in any recreational activities. The clinical findings indicated painful motion, tenderness and abnormal weight bearing. The examiner diagnosed hallux valgus status post-surgical correction, fusion of right great toe. The Veteran reported that his right great toe disability had become progressively worse since his diagnosis in-service in 1978.

The Veteran had a VA examination for amputations in June 2016. The examiner noted that the Veteran had had his great right toe amputated in 1979. The VA examiner then
7 VA examination for Amputations.

The Veteran had a VA examination for amputations in June 2016. The examiner noted that the Veteran had had his great right toe amputated in 1979. The VA examiner then noted that the Veteran stated that his great right toe is intact and thus, not amputated, but that he has had so many surgeries for bunions that his great right toe is stiff and nonfunctional. The Veteran stated that he could not walk nor run very far due to the pain in his great right toe, and that he had a limp from the right great toe itself. The Veteran further stated that since the right great toe bunion surgeries, he has no movement in the right great toe. The Veteran stated that his whole right great toe is “frozen.” The clinical findings indicated that the Veteran had no function of the great right toe. The Veteran had scars which did not have a total area equal to or greater than 39 square cm (6 square inches). Finally, the VA examiner reported that the Veteran’s right toe disability impacts his ability to work because the Veteran could not stand on his feet very long, and only with short bursts can he do all tasks at hand. The VA examiner’s final remark was that the Veteran’s great right toe is intact, but nonfunctional.

The Veteran had a VA examination for foot conditions in September 2017. The VA examiner indicated that the Veteran had diagnoses of right great toe arthrodesis with residual scar, right 2nd toe valgus deformity and right foot pes planus. The Veteran stated that his right great toe pain has worsened over time, causing an abnormal gait. The Veteran also stated that he had constant pain in his great right toe and that the pain frequently radiated up his foot into his right ankle, and that he has frequent swelling and redness of his right great toe which are worsened by standing or walking for long periods. The Veteran further stated that he cannot move his great right toe, that he occasionally uses a cane and a walker when he knows that he is going to be walking for long periods, and that he has used special shoes and orthotics, which helped somewhat. The Veteran reported flare-ups after standing or walking for long periods and that the functional impact is that he has trouble standing or walking for long periods. The VA examiner found that the Veteran had pain on physical examination that contributes to functional loss. The VA examiner further noted that the Veteran had pain on movement, pain on weight-bearing and non-weight bearing, disturbance of locomotion, and interference with standing. The VA examiner found that there was functional loss due to pain, during flare-ups and/or when the joint is used repeatedly over a period of time and he described the functional loss as constant pain in the Veteran’s right great doe which frequently radiates up the foot into his right ankle, frequent swelling and redness of the right great toe, and that the pain and swelling worsen with standing or walking for long periods, and he cannot move his right great toe. The VA examiner noted that the Veteran had scars related to his surgeries, however, none of these scars were painful or unstable or had a total area equal to or greater than 39 square cm. (6 square inches). The VA examiner noted that the Veteran occasionally used a cane and a walker. The VA examiner did not find that due to the Veteran’s foot conditions there is functional impairment to the great right toe such that no effective function remains other than that which would be equally well served by an amputation with prosthesis, but he did not offer a rationale for this opinion or state what, if any function the Veteran’s great right toe provides. The VA examiner stated that the functional impact of the Veteran’s right great toe disability would make it difficult for the Veteran to stand or walk for long periods and he would also have trouble climbing ladders or steps repetitively.

The Veteran had a VA examination for amputations in September 2017 with the same examiner who conducted the September 2017 VA foot conditions examination. The VA examiner reiterated that the Veteran does not have any amputations. The VA examiner noted that the Veteran’s established diagnosis is amputation, great toe, right and that there is no change in diagnosis and no additional diagnosis has been rendered.
offer a rationale for this opinion or state what, if any function the Veteran’s great right toe provides. The VA examiner stated that the functional impact of the Veteran’s right great toe disability would make it difficult for the Veteran to stand or walk for long periods and he would also have trouble climbing ladders or steps repetitively.

At the October 2016 Board hearing, the Veteran testified that he could only walk about a block due to pain in his great right toe, that radiates up his leg. He also testified that, due to his great right toe disability, he walks with a limp due a combination of pain and stiffness. He further testified that his great right toe swells and turns red and purple after about 5 – 10 minutes of walking. Finally, he testified that he is unable to wear any kind of shoe other than leather tennis shoes due to pain in his right great toe.

Analysis

Based on the evidence as outlined above, the Board finds that the Veteran’s right great toe disability is best rated for by analogy, for the entire appeal period, under DC 5171, which provides for ratings based on the overall severity of the disability. Based on the above evidence, which reflects multiple surgeries to treat the Veteran’s right great toe, as well as VA examiners’ descriptions of his great right toe as non-functional, as well as the Veteran’s description of his great right toe as constantly painful and “frozen,” and the resulting limitation in functioning, the Board finds that functional impairment comparable to amputation with removal of the metatarsal head, has been demonstrated throughout the appeal period. As such, a 30 percent rating is warranted by analogy under DC 5171. The Board need not find that the metatarsal head has been removed in order to grant a 30 percent rating, as the Veteran’s right great toe disability is rated under DC 5171 by analogy only.

As such, the Board finds that the criteria for a 30 percent rating under 38 C.F.R. § 4.71a, DC 5171, for the entire period on appeal, have been met. There are no other diagnostic codes which would permit a higher rating than the one assigned by this decision. Additionally, a disability rating greater than 30 percent is not available for the Veteran’s right great toe disability, as such a rating would exceed the maximum 30 percent allowable under the “amputation rule.” Under the “amputation rule,” the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were the amputation to be performed. 38 C.F.R. § 4.68. As 30 percent is the maximum schedular disability rating the Veteran could receive under the amputation rule for a great toe disability, no higher disability rating is available and a discussion of ratings under other potentially applicable Diagnostic Codes is not warranted.

Thus, resolving doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that evidence of record supports the increased rating as outlined above for the Veteran’s right great toe disability. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 4.71 (a), DC 5171. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

The Board has considered whether staged ratings under Hart, are appropriate for the Veteran's service-connected right great toe disability. However, the Board finds that the Veteran’s symptomatology was stable during the course of this appeal.

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321 (b)(1).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as “marked interference with employment” and “frequent periods of hospitalization.” Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id.

The Board has carefully compared the level of severity and symptomatology of the Veteran’s service-connected right great toe disability with the established criteria found in the rating schedule. The Board finds that the Veteran’s symptomatology are fully addressed by the rating criteria under which his right great toe disability is rated. The medical evidence of record shows that the Veteran’s right great toe was completely non-functional. There has been no demonstration of additional impairment that has not been contemplated by the 30 percent disability rating under DC 5171, which affords a 30 percent rating for the amputation of the great toe with removal of metatarsal head. Therefore, the Board finds that the analogous rating criteria under which the Veteran’s right great toe disability is rated reasonably describe the Veteran’s disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran’s disability picture for his great right toe disability. Therefore, the Board need not proceed to consider the second factor, whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

The Board notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. However, in this case, as noted above, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific, rated disability, in this case, by analogy. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions.

2. Entitlement to a TDIU due to service-connected disability is denied.

The Veteran sought entitlement to a TDIU based on his service-connected right foot disability, which he referred to as “foot/leg deterioration.” See VA Form 21-8940 dated and received in December 2013. As previously noted, the Veteran’s claim of entitlement to a TDIU stems from the appeal for a higher rating for his
impairment that has not been attributed to a specific, rated disability, in this case, by analogy. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions.

2. Entitlement to a TDIU due to service-connected disability is denied.

The Veteran sought entitlement to a TDIU based on his service-connected right foot disability, which he referred to as “foot/leg deterioration.” See VA Form 21-8940 dated and received in December 2013. As previously noted, the Veteran’s claim of entitlement to a TDIU stems from the appeal for a higher rating for his service-connected right great toe disability, pursuant to Rice. The Veteran’s claim for an increased rating for right great toe disability was received on January 29, 2010. Therefore, the rating period for consideration of entitlement to a TDIU is from January 29, 2009, one year prior to receipt of the claim, if increase in disability is demonstrated within the one-year period, through the present. See, 38 C.F.R. § 3.400(o)(2).

TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19.

It is the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director, 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). 38 C.F.R. § 4.16 (b).

Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. “Substantially gainful employment” contains economic and noneconomic components. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F. 3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. §§ 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

When the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, a Veteran may be entitled to a TDIU on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b).

The record reflects that the Veteran’s TDIU claim was denied in an unappealed July 2014 rating decision. However, pursuant to Rice, a claim for a TDIU is part of the appeal for an increased rating for the right great toe disability currently before the Board, as the Veteran, in his December 2012 Substantive appeal, and a December 2013 application for
38 C.F.R. § 4.16 (a) are not met, a Veteran may be entitled to a TDIU on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b).

The record reflects that the Veteran’s TDIU claim was denied in an unappealed July 2014 rating decision. However, pursuant to Rice, a claim for a TDIU is part of the appeal for an increased rating for the right great toe disability currently before the Board, as the Veteran, in his December 2012 Substantive appeal, and a December 2013 application for TDIU, asserted he was unemployable, in part, due to his service-connected right great toe disability.

During the period from January 29, 2009 the Veteran was service connected for right great toe disability, rated as 10 percent disabling, for tinnitus, rated as 10 percent disabling from January 29, 2010, and bilateral hearing loss, rated as 0 percent disabling. His combined schedular rating was 20 percent from January 29, 2010. The Board notes that the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a) are not met during the period on appeal. Although the Veteran does not meet the schedular requirements for a TDIU during the entire period on appeal, the Board must still determine whether or not the Veteran is rendered unemployable due to his service-connected disabilities, so as to warrant referral for entitlement on an extraschedular basis, taking into consideration his educational and occupational background. 38 C.F.R. § 4.16 (b).

The Board finds that the record does not establish that the service-connected disabilities, even when considered in combination, resulted in functional impairment so as to have precluded the Veteran from engaging in substantially gainful employment, consistent with his education and occupational experience.

The record indicates that the Veteran had a high school education as well as four years of college education. The Veteran reported training in electronics. Although the Veteran reported that his service-connected disabilities affected his full-time employment as of January 7, 2012, the Veteran also reported that he continued to work full-time until 2015 and that that he stopped working as a truck driver because of his nonservice-connected back, knee and hip pain. See September 2017 Amputations VA examination.

After thorough consideration of the evidence of record, including the Veteran’s VA examinations, Social Security Administration records, VA treatment records and lay statements, the Board concludes that the most probative evidence of record does not show that it is at least as likely as not that the Veteran’s service-connected right great toe, hearing loss and tinnitus disabilities precluded him from securing or following substantially gainful consistent with his education levels and work history at any time during the period on appeal. The Veteran worked full-time until 2015, thus he demonstrated that he was able to maintain substantially gainful employment prior to leaving employment as a truck driver in 2015. During the appeal period in which he was not working full-time, neither the Veteran nor the appellant asserted that his hearing loss and/or tinnitus rendered him unemployable.

Although the ultimate determination of whether the Veteran was unable to work is a legal one, not a medical one, the Board notes that no medical professional has provided an opinion indicating that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation at any time during the appeal period. The Board has acknowledged that the Veteran was unemployed from 2015 until his death in August 2018, and that the medical evidence of record shows that he would have had limitations with regard to his ability to stand or walk for a long period or repetitively climb ladders or steps. The Board finds that, although the Veteran, due to pain and swelling in his right great toe after prolonged standing or walking, would have been unable to work as a full-time truck driver after 2015, as his position involved loading and unloading goods in the warehouse, (see June 2014 VA examination for knee and lower leg conditions), the Veteran would not have been precluded from all full-time employment.

The Veteran had a college education as well as training in electronics. His level of education is consistent with an ability to perform nonphysical work of at least a semi-skilled nature, such as clerical, inspection, or assembly work. The Board finds that his work history would not have prevented him from transitioning to an unskilled or semi-skilled sedentary occupation, or from securing or following an unskilled or semi-skilled sedentary occupation, which did
a full-time truck driver after 2015, as his position involved loading and unloading goods in the warehouse, (see June 2014 VA examination for knee and lower leg conditions), the Veteran would not have been precluded from all full-time employment.

The Veteran had a college education as well as training in electronics. His level of education is consistent with an ability to perform nonphysical work of at least a semi-skilled nature, such as clerical, inspection, or assembly work. The Board finds that his work history would not have prevented him from transitioning to an unskilled or semi-skilled sedentary occupation, or from securing or following an unskilled or semi-skilled sedentary occupation, which did not require special training and can be learned on the job site.

The Board notes that “sedentary work” is not defined in the relevant statues, regulations, or caselaw, and that the Board must provide a definition on a case-by-case basis. See Withers v. Wilkie, 30 Vet. App. 139 (2018). In this case, the Board defines "sedentary work" as work that is performed mostly in a sitting position and requires no more than 2 hours of standing and/or walking in an 8-hour workday. Occupations representative of sedentary work include clerical work, inspection work, and assembly work. Such work is performed mostly in a sitting position and would not require the type of prolonged standing and walking that is precluded by the Veteran’s service-connected right great toe disability.

The Board acknowledges that the Veteran would have experienced additional difficulty maintaining employment due to other, non-service-connected, disabilities, specifically, back, knee and hip disabilities which he noted in the September 2017 VA examination for amputations. The Board reiterates that its consideration of whether the Veteran was able to secure or follow substantially gainful employment entails consideration of only his service-connected right great toe, hearing loss and tinnitus disabilities. Further, while the Veteran was competent to report symptoms observable to a layperson, and may have believed that his service-connected disabilities caused more severe restriction than found in the medical evidence of record, he was not shown to possess the knowledge or expertise to determine whether his service-connected disabilities precluded substantially gainful employment. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the Board affords greater probative weight to the opinions of the expert medical professionals in the record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In light of the above, the Board finds that the most probative evidence of record does not show that it is at least as likely as not that the Veteran’s service-connected right great toe, hearing loss and tinnitus disabilities prevented him from securing or maintaining substantially gainful employment. Therefore, the Board finds that referral for extraschedular consideration is not warranted under 38 C.F.R. § 4.16 (b). Therefore, the preponderance of the evidence is against entitlement to a TDIU, to include on an extra-schedular basis. Because the preponderance of the evidence

is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

U. R. POWELL

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board S. E. Leary, Associate Attorney

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.

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