Citation Nr: 0724399 Decision Date: 08/07/07 Archive Date: 08/20/07 DOCKET NO. 03-22 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased disability rating on an extraschedular basis for service-connected bilateral pes planus with hallux valgus and plantar warts, status post multiple surgical procedures involving both feet, including bunionectomies, tenotomies, capsulotomies and nail revision, currently evaluated 50 percent disabling. 2. Entitlement to an increased disability rating on an extraschedular basis for service-connected scar, donor site of left hip, currently evaluated 10 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 4. Entitlement to special monthly compensation based on the need for regular aid and attendance or housebound status. ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from September 1971 to June 1972. Procedural history This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which denied the veteran's claims for increased disability ratings for service-connected bilateral foot and left hip scar disabilities [rated at the time 50 percent and zero percent disabling, respectively], entitlement to TDIU and entitlement to special monthly compensation based on need for aid and attendance. In a decision dated June 16, 2004, the Board denied the veteran's claim of entitlement to an increased disability rating for the bilateral foot disability. The Board did, however, assign a separate 10 percent evaluation for a scar on the veteran's left foot. The Board also granted an increased rating, 10 percent, for the donor site scar on the left hip. The claims for TDIU and special monthly compensation based on the need for aid and attendance were remanded for further evidentiary development. The veteran appealed the Board's June 2004 decision to the United States Court of Appeals for Veterans Claims (the Court). In February 2005, counsel for the veteran and the Secretary of VA filed a Joint Motion for Partial Remand. In that Joint Motion, the parties noted that the veteran did not contest the assigned schedular disability ratings. The parties asserted, however, that the Board had failed to provide adequate reasons and bases for its finding that increased disability ratings were not warranted for bilateral foot and left hip disabilities on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b). See the February 2005 Joint Motion for Partial Remand, page 2. An Order of the Court dated February 9, 2005 granted the motion and remanded the veteran's increased rating claims solely for consideration of an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b) (2006). In June 2005, the Board remanded the issue of entitlement to an increased rating for the service-connected bilateral foot disability on an extraschedular basis for additional evidentiary and procedural development. In a December 2005 supplemental statement of the case (SSOC), the RO determined that consideration of the veteran's bilateral foot disability on an extraschedular basis was not warranted. The Board remanded all four claims in May 2006 for noncompliance with prior remand instructions and additional evidentiary and procedural development. This was accomplished, and in March 2007 the VA Appeals Management Center (AMC) issued a SSOC which continued the prior findings as to all four issues on appeal. The veteran's claims folder has been returned to the Board for further appellate proceedings. Representation The Board notes that the veteran was previously represented by Richard A. LaPointe, who resigned his power of attorney effective March 1, 2006. The RO informed the veteran of this in a March 2006 letter and asked him if he would like to choose another representative for his claims. No reply has been received as of this date. Therefore, the Board will assume that the veteran wishes to proceed unrepresented. FINDINGS OF FACT 1. The evidence does not show that the veteran's service- connected bilateral foot disability is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. 2. The evidence does not show that the veteran's service- connected left hip scar is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. 3. The veteran's service-connected disabilities include: bilateral pes planus with hallux valgus and plantar warts, status post multiple surgical procedures involving both feet, including bunionectomies, tenotomies, capsulotomies and nail revision, currently evaluated 50 percent disabling; painful, tender surgical scars of the left foot, currently evaluated 10 percent disabling; and a donor site scar of the left hip, currently evaluated 10 percent disabling. The combined disability rating is 70 percent. 4. The medical and other evidence of record does not demonstrate that the veteran's service-connected bilateral foot disability and scars, which are his only service- connected disabilities, render him unable to secure or follow a substantially gainful occupation. 5. The medical and other evidence of record does not demonstrate that the veteran is in the need of regular aid and attendance by another person by reason of disability, nor is he housebound. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent on an extraschedular basis for service-connected bilateral pes planus with hallux valgus and plantar warts, status post multiple surgical procedures involving both feet, including bunionectomies, tenotomies, capsulotomies and nail revision on an extraschedular basis are not met. 38 C.F.R. §§ 3.321(b), 4.71a, Diagnostic Code 5276 (2006). 2. The criteria for a disability rating in excess of 10 percent on an extraschedular basis for service-connected scar, donor site of left hip, are not met. 38 C.F.R. §§ 3.321(b), 4.118, Diagnostic Code 7804 (2006). 3. The criteria for a total disability rating based on individual unemployability due to service-connected disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2006). 4. The criteria for special monthly compensation based on the need for regular aid and attendance, or at the housebound rate, have not been established. 38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking entitlement to increased disability ratings for a bilateral foot disorder and a left hip disorder on an extraschedular basis. He also seeks TDIU and special monthly compensation for aid and attendance. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. Stegall considerations The Joint Motion noted that the veteran did not contest the assigned schedular disability ratings. The parties asserted, however, that the Board had failed to provide adequate reasons and bases for its finding that increased disability ratings were not warranted for bilateral foot and left hip disabilities on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b). See the February 2005 Joint Motion for Partial Remand, page 2. The Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C.A. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with that obligation in mind. This case has been remanded by the Board for additional development, to include for readjudication by the agency of original jurisdiction of the increased rating claims on an extraschedular basis. This has been accomplished. See the March 2007 SSOC. The Board also requested VA examinations in connection with the TDIU and aid and attendance claims, which were accomplished in September and October 2006. Finally, the Board requested that updated treatment records pertaining to the veteran from the Youngstown, Ohio outpatient clinic be obtained. This, too has been accomplished. This recently obtained medical evidence, obtained pursuant to the Board's May 2006 remand, will be discussed below. The agency of original jurisdiction has complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the Veterans Claims Assistance Act of 2000 (the VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2006). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to all of the issues on appeal. With respect to the veteran's claims for increased disability ratings on an extraschedular basis, the veteran was informed of the evidentiary requirements for such in a letter from the AMC [issued subsequent to the Board's May 2006 remand] dated June 2, 2006, including the necessity of evidence that "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards." In any event, the veteran is obviously aware of these evidentiary requirements, as the provisions of 38 C.F.R. § 3.321(b) were outlined in the Joint Motion and thoroughly discussed in support of the parties' desire to remand the claims. See the Joint Motion, pages 3-4. The Board also notes that the Court-adopted Joint Motion did not identify any defect in the Board's June 2004 decision regarding the notification provisions of the VCAA for the veteran's increased rating claims. Nor did the parties or the Court itself identify and deficiencies with respect to VCAA notice compliance on the part of VA. The reason for remand, as stated in the Joint Motion, as adopted by the Court, was the Board's failure to provide adequate reasons and bases for its finding that increased disability ratings were not warranted for bilateral foot and left hip disabilities on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b). With respect to the veteran's TDIU claim, the June 2006 letter informed the veteran of the necessity of evidence "that your service-connected disability or disabilities are sufficient, without regard to other factors, to prevent you from performing the mental and/or physical tasks required to get or keep substantially gainful employment." The veteran was also informed that an award of TDIU required one service- connected disability ratable at 60 percent or more; or two or more service-connected disabilities, at least one ratable at 40 percent with a combined disability rating of 70 percent or more. The June 2006 letter also delineated the evidentiary requirements for the veteran's claim for special monthly compensation based on aid and attendance, including evidence that "you require the aid of another person in order to perform personal functions required in everyday living," or "you are bedridden, in that your disability or disabilities requires that you remain in bed apart from any prescribed course of convalescence or treatment." With respect to entitlement to special monthly compensation based on housebound status, the June 2006 letter informed the veteran that he must provide evidence of one service-connected disability at 100 percent disabling AND an additional service-connected disability at 60 percent disabling, or a single service-connected disability at 100 percent disabling and "due solely to your service-connected disability or disabilities, you are permanently and substantially confined to your immediate premises." Crucially, the veteran was informed of VA's duty to assist him in the development of his claims and advised of the provisions relating to the VCAA in the above-referenced June 2006 letter, along with additional letters from the RO dated March 12, 2003 and October 27, 2005. Specifically, the veteran was advised in the October 2005 and the June 2006 VCAA letters that VA is responsible for obtaining relevant records from any Federal agency, including records kept by VA treatment centers, the Social Security Administration (SSA) and the military. The June 2006 VCAA letter indicated that records from the Youngstown VA outpatient clinic had been requested on the veteran's behalf. With respect to private treatment records, the October 2005 and June 2006 letters informed the veteran that VA would make reasonable efforts to obtain relevant records not held by any Federal agency. Included with all three letters were copies of VA Form 21- 4142, Authorization and Consent to Release Information, and the veteran was asked in the letters to complete this release so that VA could obtain private records on his behalf. The October 2005 and June 2006 letters further emphasized: "If the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency" [Emphasis as in originals]. The veteran was also advised in all three letters that VA medical examinations would be scheduled if necessary to make a decision on his claims. As the veteran is unrepresented, the June 2006 letter also listed a number of Veterans' Service Organizations (VSOs) and informed the veteran that he could receive free representation from a VSO for his case. The Board notes that the June 2006 letter specifically requested of the veteran: "If there is any other evidence, lay or medical, or information, not previously submitted, that you think will support your appeal, please let us know . . . If you have any evidence in your possession. that pertains to your appeal, that you have not yet submitted, please send it to us" [Emphasis as in original]. This request complies with the requirements of 38 C.F.R. § 3.159 (b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. Finally, there has been a significant recent Court decision concerning the VCAA. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Court's holding in Dingess does not exclusively apply to service connection claims. Indeed, with respect to a claim for an increased disability rating, such as the instant case, Dingess dictates that the veteran is to be provided notice that an effective date for the award of benefits will be assigned if an increased disability rating is awarded. As for the veteran's claims for TDIU and special monthly compensation, Dingess indicates that the veteran is to be provided notice that a disability rating and an effective date for the award of benefits will be assigned if his claims are granted. The veteran was provided specific notice of the Dingess decision in a letter from the RO dated March 31, 2006 and the above-referenced June 2006 letter. Both letters detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letters as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the March 2006 and June 2006 letters instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letters as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. In the instant case, element (1) is not in dispute. With respect to the veteran's claims, elements (2) and (3) are irrelevant, because service connection has already been granted for the increased rating claims and such are inapplicable to the TDIU and special monthly compensation claims. With respect to element (4), degree of disability, the veteran has been provided appropriate notice as to the requirements for an extraschedular rating, TDIU and special monthly compensation as detailed above. Element (5), effective date, is rendered moot via the AOJ's denial of the veteran's claims. In other words, any lack advisement as to that element is meaningless, because effective dates were not assigned. Because as discussed below the Board is denying the veteran's claims, element (5) remains moot. The veteran was not initially provided notice of the VCAA prior to the initial adjudication of his claims, which was by rating decision in April 2003. The Board is of course aware of the Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), which appears to stand for the proposition that VCAA notice must be sent prior to adjudication of an issue by the RO. Crucially, the veteran was provided with VCAA notice through the October 2005, March 2006 and June 2006 VCAA letters and his claims were readjudicated in the March 2007 SSOC, after he was provided with the opportunity to submit evidence and argument in support of his claims and to respond to the VA notice. Thus, any VCAA notice deficiency has been rectified, and there is no prejudice to the veteran in proceeding to consider his claims on the merits. See Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran has pointed to no prejudice resulting from the timing of the VCAA notice. Moreover, it is abundantly clear from pleadings to the Court, the Joint Motion itself, and statements made to the Board that the veteran is, or should be, fully aware of what is required under the VCAA. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]; see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) [VA has no further duty to notify a veteran of the evidence needed to substantiate his claim, or to assist him in obtaining evidence, in that no reasonable possibility exists that any further assistance would aid him in substantiating his claim]. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2006). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. In particular, the RO has obtained reports of VA and private treatment of the veteran. Additionally, the veteran was afforded VA examinations in April 2003, November 2005, September 2006 and October 2006 [the latter two pursuant to the Board's May 2006 remand instructions]. The reports of these examinations reflect that the examiners reviewed the veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations and rendered appropriate diagnoses and opinions. Accordingly, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the VCAA and that no further actions need be undertaken on the veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2006). The veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has declined the option of a personal hearing. Accordingly, the Board will proceed to a decision. 1. Entitlement to an increased disability rating on an extraschedular basis for service-connected bilateral pes planus with hallux valgus and plantar warts, status post multiple surgical procedures involving both feet, including bunionectomies, tenotomies, capsulotomies and nail revision, currently evaluated 50 percent disabling. 2. Entitlement to an increased disability rating on an extraschedular basis for service-connected scar, donor site of left hip, currently evaluated 10 percent disabling. Because these two issues have the same procedural history and involve the application of identical law, the Board will address them together. Pertinent law and regulations Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that 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 would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2006), Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Analysis It appears that the reason for the Joint Motion was that its authors believed that the Board could not render a fully informed decision as to the matter of extraschedular ratings while at the same time remanding the TDIU claim for additional development. The Joint Motion did not itself identify any aspect of either of the veteran's disabilities which could be deemed to be exceptional or unusual, nor did it even suggest that such was the case. As was explained in the Board's discussion above, recent medical evidence, to include examination reports which fully describe the veteran's service-connected disabilities, has been added to the record. After a careful review of all of the medical evidence, the Board concludes that there is no evidence of an unusual clinical picture, symptoms which are out of the ordinary, or any other factor which could be characterized as exceptional or unusual regarding either the bilateral foot disorder or the left hip scar. The VA examiners did not indicate that the veteran's bilateral foot disorder or left hip scar are in any way out of the ordinary clinically, nor was such demonstrated in the VA medical treatment records. Indeed, the September 2006 VA examiner specifically noted that the wound from the 1995 bone graft which led to his left hip scar "healed without incident to include infections." Of significance is the lack of treatment for bilateral foot problems over the past few years. Although the veteran has had a number of surgeries on his feet in the past, the most recent was five years ago, in August 2002. Review of the voluminous outpatient records shows that between the veteran's most recent foot surgery in August 2002 and August 2006, the veteran made only a handful of complaints about his bilateral feet. See generally Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence]. There is also no evidence of frequent hospitalization for the veteran's bilateral foot or left hip scar disabilities. As note above, the most recent surgery performed on the veteran's feet was five years ago in August 2002, and the veteran has never been hospitalized for his left hip scar. With respect to "marked" interference with employment, there is no competent evidence in the medical record to indicate that the veteran's service-connected left hip scar markedly interferes with his ability to work beyond that which is contemplated in his currently assigned 10 percent disability rating, and the veteran has pointed to no such evidence. The September 2006 VA examiner specifically indicated that the veteran had no functional limitations due to service-connected scar. As for the bilateral foot disability, in a September 2006 opinion a VA foot examiner stated the veteran's bilateral foot disability caused "marked interference with employment or [sic] frequent hospitalization." By law, the Board is obligated under 38 U.S.C. § 7104(d) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The opinion of the September 2006 VA examiner [who stated the veteran's bilateral foot disability has caused "marked interference with employment or [sic] frequent hospitalization."] is of little probative value. The examiner provided no reasons and bases in support of this conclusion. Indeed, the examiner's statement appears to be no more than a rote recitation of the evidentiary requirements of 38 C.F.R. § 3.321(b), with no reference to the veteran's actual physical condition and medical history. The September 2006 VA examination results themselves contradict the examiner's opinion that there was marked interference with employment. The examiner noted that the veteran did not require a device to assist with ambulation, and function of the veteran's feet was noted as "mildly additionally limited by repetitive use, especially during flare-ups" [Emphasis added]. It is difficult to rationalize how such symptomatology could warrant a finding of "marked" interference with employment requiring use of extraschedular standards. Finally, the September 2006 VA examiner did not explain how the veteran's service-connected bilateral foot disability could possibly cause "frequent" hospitalization, since the medical history does not demonstrate frequent hospitalizations, and none at all in the last five years. The Board cannot reconcile these objective medical findings with the examiner's conclusory statement. See Hernandez- Toyens v. West, 11 Vet. App. 379, 382 (1998) [in assessing medical opinions, the failure of the physician to provide a basis for his or her opinion goes to the weight or credibility of the evidence]; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. The September 2006 VA examiner's opinion thus carries little weight of probative value. There are two other opinions concerning interference with employment caused by the bilateral foot disability. A November 2005 VA foot examiner found that the veteran "can no longer do his job as a truck driver. He cannot do anything requiring repetitive use of the feet or prolonged standing, climbing, walking or crawling activities." An October 2006 VA examiner stated that the veteran was unable to do jobs that require long periods of standing; she went on to conclude that "there are no reasons he cannot do sit-down jobs. There is also no reason he cannot drive a car or truck, perhaps not for long distances, but he can certainly operate a motor vehicle." Both opinions indicated that the veteran's foot problems limited his employability. This is not in dispute. The veteran is currently in receipt of a 50 percent rating, which is the highest available rating under Diagnostic Code 5276. The Board emphasizes that loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. There is no indication in the medical reports that the veteran's foot disability is productive of interference with employability to a degree not contemplated by the currently assigned 50 percent rating. Crucially, no opinion or medical report has identified any exceptional or unusual disability picture caused by the veteran's service-connected foot disability, over and above that which is contemplated in the schedular criteria. A 50 percent rating is assigned for "pronounced" symptoms, such as marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, Diagnostic Code. The only such symptom of record is that of extreme tenderness. This falls squarely within the criteria for the assignment of a 50 percent schedular rating, which is the rating which has been assigned. The veteran himself has not identified any exceptional interference with employment. He has in fact indicated on a number of occasions to VA clinicians that his service- connected bilateral foot disability does not interfere with his employability. Specifically, in August 2006 VA psychiatry nursing admission assessment, the veteran reported that he "walks frequently" and had no limitations on mobility. Furthermore, the veteran himself indicated to the October 2006 aid and attendance examiner that he is the primary caregiver for his mother. In short, there is no evidence which supports a conclusion that the service-connected bilateral foot disability does not cause a "marked" interference with his ability to work, over and above what is already compensated via the assigned 50 percent rating. In short, the Board has been unable to identify any factor consistent with an exceptional or unusual disability picture with respect to the service-connected bilateral foot disorder and left hip scar. Moreover, the veteran has merely contended that the extraschedular factors should be considered; he has not pointed to any such unusual factors. See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim for VA benefits]. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against referral for extraschedular evaluation for both the veteran's service-connected bilateral foot disability and his left hip scar. The benefits sought on appeal are accordingly denied. 3. Entitlement to TDIU. Pertinent law and regulations It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16 (2006). A finding of total disability is appropriate "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." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2006). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2006). The Court noted the following standard announced by the United States Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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. 38 C.F.R. § 4.16(a) (2006). If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2006). Id. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. Analysis As has been discussed in the law and regulations section above, TDIU may be awarded on either a schedular basis or an extraschedular basis. As explained below, in this case only the schedular basis need be considered. Schedular basis The veteran is service-connected for his bilateral foot disability which is currently 50 percent disabling; and associated scarring on the left foot, which is currently 10 percent disabling. He is also service-connected for a scar on the left hip at 10 percent disabling. These are his only service-connected disabilities. The combined disability rating is 70 percent. The veteran thus meets the criteria for schedular consideration of TDIU, with one service-connected disability ratable at 40 percent or more [the bilateral foot disability] and the combined rating of 70 percent. See 38 C.F.R. § 4.16(a) (2006). The veteran's contentions center on the service-connected bilateral foot disability. This appears to include the tender and painful surgical scar. There is no evidence of record to support the contention that his service-connected left hip scar is a factor in his employment picture, and he has not offered arguments to the contrary. As was noted above, the September 2006 VA examiner specifically indicated that the veteran had no functional limitations due to service-connected left hip donor site scar. As for the service-connected bilateral foot disability's effect on the veteran's employability, the Board has already thoroughly discussed above its conclusion that although the veteran's service-connected bilateral foot problems limit his employability, this is already reflected in the 50 percent schedular rating currently assigned (as well as the additional 10 percent rating for the foot scar). The medical evidence clearly indicates that the veteran would be significantly limited in employment requiring long periods of standing or other physical activities. See the November 2005 and September 2006 VA examination reports. The medical reports do not indicate that the veteran was precluded from engaging in all forms of employment due to his service-connected lower extremity disabilities. Indeed, the October 2006 VA examiner stated that although the veteran was unable to do jobs that require long periods of standing; she went on to conclude that "there are no reasons he cannot do sit-down jobs." Accordingly, the competent medical evidence does not show that the veteran's service-connected lower extremity disabilities, alone, prevent him from following a substantially gainful occupation. In support of his claim for TDIU, the veteran submitted a Judgment Entry from the Court of Common Pleas in Ohio. The December 1984 Judgment Entry found no error in a determination from the Board of Review of the Ohio Unemployment Compensation Bureau which determined that the veteran was dismissed from the R.M.I. company for "unjust cause." The veteran indicates that he was terminated from R.M.I for using too much sick leave for his service-connected foot problems, and that such is evidence of his current unemployability. See the veteran's May 13, 2005 statement. Review of a December 1981 statement from R.M.I. supports that the veteran was dismissed for "absenteeism", the cause of which was not stated. Contemporaneous medical records indicate that the veteran underwent operations on both feet in march 1981, so the board has no reason to doubt that the veteran loss time from work in 1981 due to foot problems. However, those records are over two decades old. Recent medical evidence shows that the veteran's bilateral foot problems have improved in the recent years (no recent foot surgeries and few recent complaints) and do not preclude him from employment. The Board also cannot ignore the veteran's history of drug abuse and psychiatric problems as affecting his ability to secure or follow a substantially gainful occupation. The medical evidence demonstrates that he has been hospitalized for detoxification at least five times, and recent laboratory studies conducted in August 2006 were positive for the presence of benzodiazepines and opioids. There is also evidence of depression in the recent treatment records, with recent Global Assessment of Functioning (GAF) scores of 20 [indicative of a danger of hurting oneself or others] and 50 [indicative of serious impairment in occupational functioning]. These problems, which manifestly are very significant, are not service connected. In conclusion, for the reasons and bases expressed above the Board finds that, taking into consideration only his service- connected lower extremity disabilities, employment is "realistically within the physical and mental capabilities" of the veteran. See Moore, 1 Vet. App. at 359. Accordingly, the veteran's claim for TDIU is denied on a schedular basis. Extraschedular basis Referral to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2006) in TDIU claims only applies to those TDIU claims that do not meet the percentage standard set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). 38 C.F.R. § 4.16 (b) does not have to be addressed by the Board in the instant case. This is because 38 C.F.R. § 4.16 (a) is applicable to the veteran's service-connected disabilities for consideration of TDIU. See Stevenson v. West, 17 Vet. App. 91 (1999); Beaty v. Brown, 6 Vet. App. 532 (1994) citing McNamara v. Brown, 14 Vet. App. 317 (1994) ["section 4.16(b) of title 38, Code of Federal Regulations, provides a discretionary authority for a TDIU rating in cases where § 4.16(a) does not apply." (Emphasis added)]. In any event, the Board has already detailed above how the veteran's service-connected bilateral foot problems are not so unusual as to require extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) in the instant case. Therefore, the matter of the veteran's entitlement to TDIU does not warrant referral to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 4.16(b). In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claim for TDIU. The benefit sought on appeal is accordingly denied. 4. Entitlement to special monthly compensation based on the need for regular aid and attendance or housebound status. Pertinent law and regulations Aid and Attendance Special monthly compensation is payable at a specified rate if the veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l) (West 2002), 38 C.F.R. § 3.350(b) (2006). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination. A veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions that the veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. Housebound rate Special monthly compensation is payable at a specified rate if the veteran, as the result of service-connected disability, has one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher or he is permanently housebound. The veteran will be found to be permanently housebound if, due to his service-connected disabilities, he is confined to his home or the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that such confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350(i) (2006). Analysis As a preliminary matter, the Board notes that the veteran does not meet the criteria for special monthly compensation at the housebound rate, based on one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher. Service connection is currently in effect for a bilateral foot disability (rated 50 percent disabling); a left hip scar (rated at 10 percent disabling); and left foot scars (rated as 10 percent disabling). In addition, there is simply nothing in the medical evidence of record which shows that the veteran is in any manner unable to engage in activities outside of his home. The October 2006 examiner specifically found that "there are no restrictions in reference to the veteran being able to leave his home or immediate premises." In fact, the veteran himself has not specifically contended otherwise Nor does the veteran meet the criteria for special monthly compensation based on the need for regular aid and attendance. At the October 2006 VA examination, the veteran's complaints included difficulty with balance. Though he noted that he had a history of falls, he admitted that he never sought medical treatment for such. The veteran denied bowel or bladder incontinence, difficulty with memory, or any difficulties performing self-care [even noting that he himself was the primary caregiver for his mother]. He indicated that he still drives, and stated he was completely independent in all activities of daily living. He noted that he was able to dress and undress himself, attend to the needs of nature, shave and feed himself. The veteran did not require a special prosthetic or orthopedic appliance to assist with ambulation and drove himself to the examination. After conducting a physical examination of the veteran, the October 2006 examiner concluded that the veteran "does not need another person for regular aid and attendance." This is in line with the findings of the September 2006 VA examiner, who noted that the veteran was "completely independent in all of his activities of daily living." There is no evidence to the contrary. The veteran, in seeking special monthly compensation based on the need for regular aid and attendance or due to housebound status, implicitly alleges that he is so disabled. However, he has not been specific as to his limitations, and indeed he has in essence denied any such limitations. Crucially, his claim is not supported by any competent medical evidence demonstrating that he is in fact disabled to the extent that he requires the regular aid and assistance of another person, or that he is limited to his house and its immediate premises. He has not provided or identified any such evidence. See 38 U.S.C.A. § 5107(a), supra. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the claim for special monthly compensation for regular aid and attendance and at the housebound rate. The benefit sought on appeal is accordingly denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating in excess of 50 percent on an extraschedular basis for service-connected bilateral pes planus with hallux valgus and plantar warts, status post multiple surgical procedures involving both feet, including bunionectomies, tenotomies, capsulotomies and nail revision, is denied. Entitlement to a disability rating in excess of 10 percent on an extraschedular basis for service-connected scar, donor site of left hip, is denied. Entitlement to TDIU is denied. Entitlement to special monthly compensation based on the need for regular aid and attendance or housebound status is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs