FOOT IMPAIRMENT OF

CLAIRE M. DAVIDOSKI · 2022 · Case ID: 22065551

MIXED

Summary

The veteran, who served from January 1982 to March 1982, appeals the denial of increased disability ratings for a left foot condition and the denial of Total Disability based on Individual Unemployability (TDIU). The Board granted entitlement to an initial rating of 20 percent for the left foot disability prior to July 21, 2009, finding the symptoms approximated moderately severe disability under DC 5284. However, the Board denied entitlement to a rating higher than 30 percent for the periods from July 21, 2009, to November 13, 2009, and from July 1, 2010, concluding that the evidence did not support a finding of "loss of use" or a rating higher than 30 percent, despite the veteran's significant pain, use of assistive devices, and multiple surgeries. The Board granted entitlement to TDIU on an extraschedular basis, finding that the cumulative evidence, including lay statements and private medical opinions, placed the matter in equipoise regarding the veteran's inability to secure and follow substantially gainful employment due to her service-connected disabilities. The Board resolved this doubt in the veteran's favor, granting TDIU as of the date she ended gainful employment.

Rationale

Symptoms approximated moderately severe disability; Pain aggravated by ambulation and increased activity; Impacts ability to stand or walk for prolonged periods

Special Benefit

TDIU

Diagnostic Code

5284

Docket No.

11-04 574

Full Decision Text

Citation Nr: 22065551
Decision Date: 11/23/22 Archive Date: 11/23/22

DOCKET NO. 11-04 574
DATE: November 23, 2022

ORDER

Entitlement to initial rating of 20 percent, but no higher, prior to July 21, 2009, for status post shout gun injury in the left foot (left foot disability), is granted.

Entitlement to rating in excess of 30 percent for period from July 21, 2009, to November 13, 2009, for a left foot disability, and from July 1, 2010, is denied.

Entitlement to a total rating based on individual unemployability (TDIU) is granted.

FINDINGS OF FACT

1. Prior to July 21, 2009, the Veteran's left foot disability was manifested by symptoms more approximating a moderate severe severity.

2. Beginning July 21, 2009, through November 13, 2009, and from July 1, 2010, the Veteran's left foot disability has been manifested with severe symptoms.

3. Resolving all doubt in the Veteran's favor, it is reasonably shown that the Veteran's service-connected disabilities preclude her from securing or following a substantially gainful occupation.

CONCLUSIONS OF LAW

1. Prior to July 21, 2009, the criteria for entitlement to an increased initial disability rating of 20 percent, but no higher, for a left foot disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5284.

2. Beginning July 21, 2009 through November 13, 2009, and from July 1, 2010, the criteria for entitlement to a disability rating of 30 percent for a left foot disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5284.

3. The criteria for a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1982 to March 1982.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran's claims for increased disability ratings for her left foot disability were previously denied by the Board in a June 2018 decision. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC).

In January 2020, CAVC issued a decision vacating the June 2018 Board decision and remanding for further action. This matter was subsequently remanded by the Board in May 2021. In consideration of the appeal, the Board is satisfied there was substantial compliance

Increased Rating

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1.

VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7.

1. Entitlement to initial rating of 20 percent, but no higher, prior to July 21, 2009, left foot disability, is granted.

The Veteran's left foot disability is currently assigned a 10 percent disability rating, prior to July 21, 2009, under DC 528
. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7.

1. Entitlement to initial rating of 20 percent, but no higher, prior to July 21, 2009, left foot disability, is granted.

The Veteran's left foot disability is currently assigned a 10 percent disability rating, prior to July 21, 2009, under DC 5284.

Under DC 5284, a 10 percent rating is assigned for moderate residuals of foot injuries. A 20 percent rating is assigned for moderately severe residuals. A 30 percent rating is assigned for severe residuals of foot injuries. A 40 percent evaluation is assigned for residuals so severe as to result in actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284.

The words "moderate" and "marked" are not defined in the VA rating schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6.

Additionally, the Board notes that the rating criteria for musculoskeletal disorders were revised on February 7, 2021. However, there were no amendments to DC 5284.

Turning to the evidence of record, a March 2002 private treatment record noted the Veteran had pain on manipulation of her left foot and she could not do a toe-raise.

The Veteran had an examination for her left foot disability in April 2004.The Veteran reported frequent swelling and pain in her left foot. She reported she had pain while at rest and stiffness and swelling while standing or walking. She also reported weakness. Her functional impairment was noted to be difficulty walking, occasional left foot locking, and becoming unstable on her feet. Examination of the feet revealed painful motion and weakness. She did not have full range of motion in her left foot. She did not have any signs of abnormal weight bearing. She also did not require an assistive device for ambulation. The examiner noted that she had limitations in standing and walking, which were that it hurt to stand for a long time and there was difficulty walking.

Based on this evidence, including the medical evidence of record, as well as the Veteran's description of her foot pain with resulting limitation in functioning, the Board finds that a higher 20 percent rating is warranted, as the Veteran's left foot symptoms, prior to July 21, 2009, amount to "moderately severe" disability according to DC 5284. The Board further finds that her reports of pain, weakness, swelling, and functional impairment are specifically encompassed in the assignment of this higher 20 percent disability rating. DC 5284 provides for ratings based on the overall severity of the disability. The Board finds that the Veteran's let foot symptomatology more nearly approximates that of a moderately-severe disability. In reaching this conclusion, the Board finds probative the fact that she experiences left foot pain that is aggravated by ambulation and increased activity, which impacts her ability to stand or walk for prolonged periods and causes altered gait. Thus, the Board finds that her disability picture more nearly approximated a 20 percent disability rating, prior to July 21, 2009, under DC 5284. See 38 C.F.R. §§ 4.3, 4.7.

The Board finds that a rating greater than 20 percent is not warranted. In so finding, the Board takes notice that although the Veteran had pain, stiffness and swelling at rest, pain on manipulation of the foot, difficulty walking, and weakness, her examination did not reveal any abnormal weight bearing, nor did she require an assistive device for ambulation or any type of support for her shoes. There was also no muscle atrophy, and her sensory findings were within normal limits. Thus, the Veteran's symptoms more nearly approximated a 20 percent rating, but no higher, under DC 5824, prior to July 21, 2009.

In making this determination, the Board has considered the Veteran's representative's argument that the Veteran should be assigned a 30 percent rating, under DC 5284, prior to July 21, 2009. In asserting this argument, the representative submitted that the June 2022 private opinion notes that the Veteran's left foot symptoms have been severe since 2003. The representative further cites that Veteran's difficulty walking, instability, poor gait, and increased absenteeism from work constitutes a severe injury under DC 5284. The Board disagrees. As noted above, although the left foot disability caused some limitations, her overall disability picture is not considered severe. Objective evidence and lay statements of record support that the Veteran still maintained independent ambulation, had full muscle strength, and had normal neurological findings. Although her left foot disability caused absenteeism at work, it only amounted to missing work 4 times within a year. This equates to missing work once every quarter, which is notable but not significant within a year. Thus, little probative value is given to June 2022 private opinion regarding the Veteran's left foot disability symptom's severity prior to July 21, 2009. Simply put, the Veteran's left foot disability symptoms prior to July 21, 2009, do not warrant a higher rater than 20 percent, prior to July 21, 2009.

Entitlement to a rating of 20 percent, but no higher, is warranted for a left foot disability, prior to July 21, 2009.

2. Entitlement to rating in excess of 30 percent for period from July 21, 2009, to November 13, 2009, for a left foot disability, and from July 1, 2010, is denied.

For the periods on appeal from July 21, 2009, to November 13, 2009, and from July 1, 2010, the Veteran's left foot disability is rated at 30 percent under DC 5284. The Veteran was assigned a total temporary rating from November 2009 through July 1, 2010. The decision herein does not address the period of the temporary total rating.

Under DC 5284, a 30 percent rating is provided when the injury is severe, and a 40 percent rating is provided when there is actual loss of use of the foot.

The term "loss of use" of a hand or foot is defined at 38 C.F.R. § 3.350 (a) (2) as that condition where "no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis." See also 38 C.F.R. §4.63.

Examples under 38 C.F.R. § 3.350 (a)(2) that constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of three and a half inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot-drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve. See also 38 C.F.R. § 4.63.

In Tucker v. West, 11 Vet. App.369, 373 (1999), the Court held that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The Court also held that, in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision.

The Veteran had an examination for her left foot disability in July 2009. The Veteran reported constant, burning, aching, and sharp pain, which was exacerbated by physical activity and walking. At rest, standing, or walking, she reported pain, weakness, stiffness and swelling.
loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The Court also held that, in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision.

The Veteran had an examination for her left foot disability in July 2009. The Veteran reported constant, burning, aching, and sharp pain, which was exacerbated by physical activity and walking. At rest, standing, or walking, she reported pain, weakness, stiffness and swelling. The Veteran reported an inability to walk or stand for more than 15 minutes, secondary to pain. Examination of the feet revealed abnormal weight bearing with an unusual shoe pattern. There were no callosities, or breakdown. She required a cane for ambulation because of pain. The left foot had painful motion, but there was no edema, disturbed circulation, weakness, atrophy of the musculature tenderness, heat, redness, or instability. The examiner noted that the Veteran's pain was relieved by Neurontin and Darvocet. The Veteran reported that her pain results in her not being able to function. The Veteran did not require a brace, crutches, corrective shoes, a wheelchair, a prosthesis, or a walker.

A September 2009 VA treatment note indicates the Veteran sought treatment for her left foot. She reported chronic left foot pain. She indicated that she used a walker because even with a cane her gait was poor. She reported taking Neurontin, Darvocet, and Vicodin, at least four tablets a day, to ease the pain. She was measured for, trained on, and issued a rolling walker with a seat.

An October 2009 treatment note indicated the Veteran had significant and severe pain in her left foot. In November 2009, it was noted the Veteran's symptoms were not responding to conservative treatment and she underwent a triple arthrodesis of the left foot. She continued to experience pain, and an April 2010 treatment note indicated she had delayed healing of the TN and CC joints after her November 2009 surgery, which necessitated an additional surgery in May 2010 to remove hardware placed during the November 2009 surgery.

The Veteran had another examination for her left foot disability in May 2012. The Veteran reported constant use of a walker for mobilization. The examiner indicated that the Veteran's left foot disability did not result in functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis.

An April 2013 VA treatment note reported the Veteran had a total of four reconstructive surgeries on her left foot, but continued to experience chronic pain, swelling, and weakness of the left foot.

A June 2013 VA physical therapy note reported that the Veteran stated her pain was a 10/10 and she was unable to participate with range of motion and muscle testing because of pain. It was noted that the Veteran came in using her rollator walker, ambulated in a slow, cautious manner and was wearing her off loader boot on the left foot. She was issued a TENS unit for pain management.

A June 2015 VA treatment note indicated the Veteran wore orthotic shoes and she continued to take pain medication regularly. It was noted she was on long-term opioid therapy for her left foot pain, with a goal to be able to continue to walk one block using her rolling walker.

The Veteran had another examination for her left foot disability in September 2016. The Veteran described experiencing "fairly constant" excruciating left foot pain with weight bearing and non-weight bearing. The Veteran indicated that she is unable to put weight on her left foot and that she does not wear a shoe on her left foot due to pain, opting to go barefoot or with a padded heel protector boot. The examiner described the Veteran's left foot pain as severe. The examiner noted that the Veteran's foot condition chronically compromises weight bearing. The examiner noted that the Veteran experienced pain on movement, pain on weight-bearing, pain on non-weight-bearing, disturbance of locomotion, and interference with standing. The Veteran reported the constant use of crutches. The examiner indicated that the Veteran's left foot disability did not result in functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis.

The Veteran had another examination for her left foot disability in December 2017. The Veteran reported experiencing flare-ups of her left foot disability, noting increased pain and swelling with overuse. The Veteran reported functional loss of the foot. The Veteran specifically reported experiencing daily pain and that her "legs give out". She stated that some mornings she cannot even stand on her feet. The examiner noted that the Veteran experienced less movement than normal, weakened movement, pain on movement, swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting, interference with standing, and lack of endurance. The Veteran reported the constant use of crutches. The examiner indicated that the Veteran's left foot disability did not result in functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Additionally, the examiner noted that the Veteran's left foot disability impacted her ability to work. Specifically, the examiner stated that the Veteran uses crutches daily for ambulation, is unable to bear weight on the left foot, and if she manipulates the left foot, she experiences swelling and increased pain. The examiner indicated that the Veteran could perform light physical and sedentary activities, but the Veteran cannot perform general activities without restrictions, nor can she perform light duties.

In this case, the weight of the evidence demonstrates that, for the periods on appeal, the Veteran maintained some function of her left foot, in that she retained the ability to ambulate using an assistive device, principally a walker or crutches. Furthermore, the Board notes that the May 2012, September 2016, and December 2017 examiners all concluded that the Veteran's left foot disability did not result in functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Overall, the medical evidence does not support a finding that, for the periods on appeal, the Veteran's ambulation would be equally well served by an amputation and prosthesis.

The Board acknowledges the Veteran's assertion that she has lost the use of her left foot and has considered her reported symptomatology. While the Veteran is competent to report symptomatology, including that she has pain and weakness in her left foot and that she has difficulty walking, the determination of whether "loss of use" exists is a legal determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Here, the Veteran's lay reports are outweighed by the medical evidence of record, which fails to demonstrate that she is unable to ambulate with her left foot.

The Board acknowledges the Veteran's representative's argument that the Veteran's left foot disability warrants a 40 percent as of July 21, 2009. See August 2022 Appellant's Brief. However, as discussed above, the Board disagrees. Although severe right foot symptoms were documented this period, the clinical evaluations indicated that the Veteran retained some strength in her left foot and ability to ambulate with some difficulty. No VA examiner characterized the functional impairment from the left foot disability as functioning so diminished that amputation with prosthesis would equally serve the Veteran. Accordingly, a rating in excess of 30 percent is not warranted.

A disability rating in excess of 30 percent for a left foot disability for the periods on appeal from July 21, 2009, to November 13, 2009, and from July 1, 2010, is not warranted.

3. Entitlement to a total rating based on TDIU is granted.

The Veteran alleges that her service-connected disabilities prevent her from securing and following gainful employment.

Total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §4.16 (a).

Even when a
to a total rating based on TDIU is granted.

The Veteran alleges that her service-connected disabilities prevent her from securing and following gainful employment.

Even when a Veteran does not meet the percentage standards for schedular TDIU, he or she may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. §4.16 (b). Put differently, the Board may consider whether referral to the Director of Compensation Service (Director) for extraschedular consideration is warranted. In the June 2018 Board decision, the issue of entitlement to a TDIU, on an extraschedular basis, was referred to the Director.

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his or her education and occupational experience, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App.524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19.

The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App.58 (2019).

The Court also held in Ray that the Board's determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board "must provide adequate reasons or basis for deviating from its earlier referral decision." Ray v. Wilkie, at 62; see also Wages v. McDonald, 27 Vet. App.233 (2015) (explaining that the Director does not have nonreviewable discretion and the Board has the jurisdictional authority to review the Director's extraschedular decisions).

During the pendency of this appeal, the Veteran is service-connected for status post shot gun injury of the left foot, rated as 20 percent from September 4, 2003, 30 percent from July 21, 2009, 100 percent from November 13, 2009, and 30 percent from July 1, 2010; left foot scar rated as 20 percent from November 13, 2009; left lower extremity hypesthesia rated as 10 percent from September 20, 2017; and linear left foot scar rated as noncompensable from November
nonreviewable discretion and the Board has the jurisdictional authority to review the Director's extraschedular decisions).

During the pendency of this appeal, the Veteran is service-connected for status post shot gun injury of the left foot, rated as 20 percent from September 4, 2003, 30 percent from July 21, 2009, 100 percent from November 13, 2009, and 30 percent from July 1, 2010; left foot scar rated as 20 percent from November 13, 2009; left lower extremity hypesthesia rated as 10 percent from September 20, 2017; and linear left foot scar rated as noncompensable from November 13, 2009. Excluding the temporary 100 percent rating period, the Veteran had a combined disability rating of at most 50 percent from September 20, 2017. Consequently, the Veteran does not meet the schedular rating for a TDIU.

The Veteran competed a VA form 21-8940 in September 2009. The Veteran reported that she became too disabled to work in June 2005. The Veteran stated that she previously worked at a power store from November 1974 to June 2005. The Veteran reported attending college for two years. She stated that she was forced to retire from her place of employment due to her left foot condition. The Veteran reported that she was receiving social security benefits.

In a November 2009 VA form 21-4192, the Veteran's former employer confirmed that the Veteran previously worked in shipping and receiving until June 2006. The Veteran left her previous employer due to back, left foot, and left knee pain.

The Veteran had an examination in April 2004. The examiner noted that the Veteran's left foot disability resulted in four times lost work per year.

The Veteran had another examination for her left foot disability in July 2009. The Veteran stated that she cannot keep up with her normal work requirements because she reports being forced to retire due to increased pain and discomfort in the ankle. The examiner noted that the Veteran had limited ability to stand and walk. She treated her left foot pain by taking Darvocet and Neurontin.

Treatment notes in September 2009 document that the Veteran was measured for, trained on, and issued one rolling walker with a seat. She was still taking both Neurontin and Darvocet as well as at least four Vicodin pills a day to ease her pain.

In an October 2009 statement, the Veteran stated that it is almost impossible for her to walk with her back, left hip, left knee, and left foot hurting. She further stated that she is in constant pain and that the pain medications she takes make her sleepy resulting in her being unable to function.

In private treatment records from April 2010, the Veteran's physician, Dr. P.G., stated that the Veteran has been unable to work since her surgery on November 13, 2009. In a March 2010 statement, the Veteran stated that she cannot walk without pain and the assistance of crutches. She further stated that she was forced to retire due to her foot and back problems.

In a private treatment record from January 2011, the Veteran's physician, Dr. H.P. stated that the Veteran is "permanently disabled due to severe medical problems."

In a January 2011 statement, Dr. P.G. stated that the Veteran "has been rendered totally unemployable because of her left foot." Additionally, Dr. P.G. stated that the Veteran has reached the maximum medical improvement to include corrective surgery attempts.

In a January 2012 statement, the Veteran stated that she is unable to work due to her pain medication. She stated that her medication causes blurred vision and impairs her thinking and reactions.

The Veteran had another examination for her left foot disability in May 2012. The examiner indicated that the Veteran's left foot disability affected her ability to work. The examiner stated that the Veteran has pain with prolonged standing and walking due to the development of traumatic arthritis. In June 2015, she reported that she took Tramadol regularly.

The Veteran had another examination for her left foot disability in September 2016. The examiner indicated that the Veteran's left foot disability impacted her ability to work. The examiner specifically stated that the Veteran is unable to bear weight on her left foot and requires the use of crutches. The examiner further noted that this makes it difficult for her to do prolonged standing or walking, going up and down stairs, and she should not be climbing any ladders.

The Veteran had another examination for her service-connected left foot disability in December 2017. The examiner opined that the Veteran's service-connected left foot disability resulted in functional loss. Specifically, the examiner stated that the Veteran uses crutches daily for ambulation, is unable to bear weight on the left foot, and if she manipulates the left foot, she experiences swelling and increased pain. The examiner indicated that the Veteran could perform light physical and sedentary activities, but the Veteran cannot perform general activities without restrictions, nor can she perform light duties.

The Veteran had a peripheral nerves examination in January 2018. The examiner indicated that the Veteran's peripheral nerve condition impacted her ability to work. Specifically, the examiner stated that the Veteran has persistent severe pain in the left foot and leg that prevents normal ambulation. She had hypersensitivity in her left foot and was unable to walk in a straight line.

In a June 2020 determination, the Director considered the Veteran's record and stated that the cumulative evidence shows the Veteran is unemployable as a result of multiple service connected and non-service-connected conditions. The Director further noted that after excluding the non-service-connected conditions, the record is negative for evidence of symptoms consistent with occupational and social impairment with reduced reliability and productivity related to the service-connected left foot conditions. The Director stated that, although the Veteran experiences significant impairment resulting from her left foot in terms of ambulation and physical limitations, "the Veteran has physical capacity to maintain sedentary employment."

In August 2022, the Veteran's sister submitted a buddy statement asserting that she assisted the Veteran with her activities of daily living. Further, she stated that the Veteran can neither stand or walk for more than a few steps without having to stop and rest.

There were also two private opinions submitted in August 2022 from a medical professional and a vocational expert supportive of a TDIU, based solely on the Veteran's left foot symptoms, throughout the period on appeal.

After a thorough review of the record, the evidence is at least in equipoise in finding that the Veteran's service-connected disabilities prevented her from securing and following substantial gainful employment. Here, the Veteran and other lay statements of record have consistently alleged that she is either restricted to work that is limited physically and that could be performed primarily seated or that she is unable to work due to her left foot disabilities. Importantly, some cite that her service-connected left foot disabilities not only impair her ability to walk, balance, and stand, but also that her medications that she takes for her left foot disability causes fatigue, blurred vision, impaired thinking, and overall impair her ability to function. Treatment notes of record confirm the frequency and high quantities of medications used to treat her left foot disability.

Considering the lay and medical evidence as a whole, the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities rendered her unable to secure and follow a substantially gainful occupation consistent with her education background and employment history. Resolving doubt in favor of the Veteran, entitlement to a TDIU is granted on an extraschedular basis as of the date she ended gainful employment.

The Board makes such findings in consideration with the Veteran's representative's arguments and positive opinions of record. Although, the medical opinions are not dispositive on the issue of entitlement of TDIU, they are informative regarding how the Veteran's service-connected disabilities might impair her functional abilities while working. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Here, the Board agrees with the positive arguments and opinions asserted for TDIU. The claim is granted.

CLAIRE M. DAVIDOSKI

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board N.B. Mmeje, 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.

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