Citation Nr: 1006502 Decision Date: 02/22/10 Archive Date: 03/02/10 DOCKET NO. 04-12 187A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial disability evaluation greater than 50 percent for service-connected endometriosis, status post hysterectomy and salpingo-oophorectomy. 2. Entitlement to service connection for a back disability, claimed as secondary to service-connected status post hysterectomy. 3. Entitlement to service connection for a shoulder disability, claimed as secondary to service-connected status post hysterectomy. 4. Entitlement to service connection for headaches, claimed as secondary to service-connected status post hysterectomy. 5. Entitlement to service connection for bilateral breast cysts, claimed as secondary to service-connected status post hysterectomy. 6. Entitlement to service connection for neck pain, claimed as secondary to service-connected status post hysterectomy. 7. Entitlement to service connection for muscle pain. 8. Entitlement to an effective date earlier than March 13, 2003 for the award of service connection for endometriosis status post hysterectomy and salpingo-oophorectomy. 9. Entitlement to total disability resulting in individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The Veteran served on active duty from February to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2003 and September 2005 by the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico. In July 2007, the Board issued a decision denying an initial disability evaluation greater than 50 percent for service- connected endometriosis status post hysterectomy and salpingo-oophorectomy. In October 2008, the Court vacated the Board's July 2007 decision and remanded for a new decision to be issued on the matter. The issues of entitlement to TDIU and entitlement to an increased disability rating for endometriosis status post hysterectomy and salpingo-oophorectomy are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent evidence, overall, indicates that a back disability, shoulder disability, headaches, bilateral breast cysts, and neck pain are not related to service or a service- connected disability. 2. The competent evidence, overall, indicates that muscle pain is not related to service. 3. In an April 1985 rating decision, the RO denied service connection for a stomach condition. A February 1986 RO letter clarified that the denied service connection claim was for chronic endometriosis, severe, status post total abdominal hysterectomy and bilateral salpingo oophorectomy. A February 1988 RO letter notified the Veteran that there was no new and material evidence to reopen the service connection claim. The Veteran was notified of these decisions and of her appellate rights. She did not file a Notice of Disagreement and no appeal was perfected. 4. The first claim to reopen a claim of entitlement to service connection for endometriosis status post hysterectomy and salpingo-oophorectomy was received by VA on March 13, 2003. CONCLUSIONS OF LAW 1. Service connection for back disability, shoulder disability, headaches, bilateral breast cysts, and neck pain is not established. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2009). 2. Service connection for muscle pain is not established. 38 U.S.C.A. § 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). 3. The April 1985 rating decision that denied service connection for chronic endometriosis, severe, status post total abdominal hysterectomy and bilateral salpingo oophorectomy is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2009). 4. The February 1998 determination of no new and material evidence received to reopen the claim of service connection for chronic endometriosis, severe, status post total abdominal hysterectomy and bilateral salpingo oophorectomy is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2009). 5. The criteria for an effective date prior to March 13, 2003, for the grant of service connection for endometriosis status post total abdominal hysterectomy and bilateral salpingo-oophorectomy, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status generally do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection". Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). In this regard, the U.S. Court of Appeals for Veterans Claims (Court) recently emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Except as provided in 38 C.F.R. § 3.300(c), pertaining to secondary service connection for ischemic heart disease or other cardiovascular disease based on the effects of tobacco products, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (as in effect before and after October 10, 2006). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b), added effective October 10, 2006, 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). The addition of 38 C.F.R. § 3.310(b) effective as of October 10, 2006, does not affect the consideration or the outcome of this case. This new paragraph was added to implement a decision of the United States Court of Appeals for Veterans Claims (Court) in the case of Allen v. Brown, 7 Vet. App. 439 (1995). The holding in that case has been binding on VA since it was issued in 1995. Thus, the regulatory provisions added by 38 C.F.R. § 3.310(b) simply conform VA regulations to the court's decision, the holding of which has been applicable during the entire period of this appeal. 2. Back disability, Shoulder disability, Headaches, Bilateral breast cysts, and Neck pain The Veteran claims that she has current back disability, shoulder disability, headaches, bilateral breast cysts, and neck pain as the result of, or aggravated by, her endometriosis status post hysterectomy and oophorectomy. The Board has addressed these claims on a direct and secondary basis. The first requirement for any service connection claim is the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. The RO obtained VA outpatient treatment records and the Veteran submitted private records. The evidence indicates mild degenerative joint disease of the feet, knees, and lumbar spine; bilateral shoulder bicipital tendinitis with adhesive capsulitis; bilateral trapezius myositis; bilateral cervical paravertebral myositis; all first diagnosed upon VA examination in September 2005. The evidence also indicates fibrocystic disease of the breasts, first indicated by mammogram in June 1990. Based on the above, the evidence does show these current disabilities, providing some evidence for this claim. The second requirement for secondary service connection is a current service-connected disease or injury, because a disability which is proximately due to or the result of a service-connected disease or injury may be service connected. 38 C.F.R. § 3.310(a). The Veteran is service connected for endometriosis status post total abdominal hysterectomy and bilateral salpingo-oophorectomy at 50 percent disabling. Secondary service connection can only be granted for any disability proximately due to or the result of his service- connected disabilities, as cited above. The Board notes that the Veteran claimed service connection for multiple disabilities as secondary to status post hysterectomy, for which the Veteran is indeed service-connected. The third requirement for establishing service connection is medical evidence that the claimed disability is proximately due to or the result of service. To fulfill the burden of proof for service connection, the medical evidence must demonstrate that the current disability was at least as likely as not (a 50 percent probability) caused by, or a result of, service. The Board will address the contention of secondary service connection first. The post-service medical records include complaints of headaches, neck, back, and shoulder pain, as well as treatment for fibrocystic disease of the breasts. However, there is absolutely no reference to her endometriosis status post hysterectomy and oophorectomy in any of the medical records concerning these conditions. Indeed, the medical records are silent regarding any possible connection between these conditions and status post hysterectomy and oophorectomy, or indeed any other physical ailment. There is simply no indication that the Veteran's claimed disability stem from any other physical problems, to include the service-connected disability or service. The Veteran was afforded a VA medical examination in September 2005. The Veteran reported pain that started "three months ago" in her shoulders, neck, back, and wrists. She reported the pain was associated with neck stiffness and headaches and was precipitated by walking, getting out of bed, and moving furniture. There were no constitutional symptoms for inflammatory arthritis. The VA examiner diagnosed mild degenerative joint disease of the feet, knees, and lumbar spine by arthritic bone survey; bilateral shoulder bicipital tendinitis with adhesive capsulitis; bilateral trapezius myositis; and bilateral cervical paravertebral myositis. The examiner stated, "It is my opinion that the currently alleged muscle pain, arthritis, shoulder pain, back and neck pain are not caused by or a result of or secondary to lack of hormones due to hysterectomy and bilateral oophorectomy for service-connected endometriosis. As seen on Hormone Foundation Publication Education of the Endocrine Society, on the internet, symptoms of menopause are hot flashes, dry vagina and painful intercourse, bone loss, depression and mood changes, and increased risk of breast cancer." Following a VA gynecological examination in September 2005, a VA examiner stated that "breast cysts and resulting breast tenderness and pain is not related at all to absence of taking hormones for current status of status post oophorectomy. Breast cysts are developed when there is excessive hormones. When there is an absence of hormones or hormonal replacement therapy and absence of ovaries, this PROTECTS against the development of breast cysts. In summary the development of breast cysts with symptoms of breast tenderness and pain is not at all related to her absence of hormones and to her status post hysterectomy and oophorectomy." The Board finds that these opinions are entitled to great probative weight, as they took into account not only a full physical examination of the Veteran, but also a thorough review of the Veteran's complete medical history and statements included in the claims file. Simply stated, the Board finds that the post-service treatment records (overall) provide evidence against secondary service connection for these claims. There is no indication in the medical records that these disabilities are proximately due to or the result of any claimed disability, including endometriosis status post hysterectomy and oophorectomy, other than the Veteran's statements, and sufficient evidence against such a finding to outweigh the Veteran's statements. Turning to direct service connection, the service treatment records (STRs) are silent for any complaints, diagnoses, or treatments for disabilities of the back, neck, shoulders, breasts, or headaches. The service records provided limited evidence against these claims. The post-service treatment records include notations of fibrocystic disease of the breasts beginning in June 1990, nearly 13 years after separation from active service. The records include notations of neck and scapular pain beginning in October 2003 and headaches beginning in September 2004, over 26 years after separation from active service. The post-service records overall contain no indication that these disabilities stem from service or any other physical problems associated with service. Simply stated, the Board finds that the post-service treatment records (overall), and the service records provide evidence against these claims. There is no medical indication that the back disability, shoulder disability, headaches, neck pain, or bilateral breast cysts are proximately due to or the result of service or any claimed disability other than the Veteran's contentions and sufficient evidence against such a finding to clearly indicate that the preponderance of evidence is against these claims. Based on the above, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a back disability, a shoulder disability, headaches, bilateral breast cysts, or neck pain on a direct or secondary basis. 3. Muscle pain The Veteran claims to have muscle pain that merits service connection. As noted above, the first requirement for any service connection claim is the existence of a current disability. The VA and private treatment records submitted indicate that the Veteran has been diagnosed with mild degenerative joint disease of the feet, knees, and lumbar spine by arthritic bone survey; bilateral shoulder bicipital tendinitis with adhesive capsulitis; bilateral trapezius myositis; and bilateral cervical paravertebral myositis. Based on this evidence, the first requirement of a current disability appears fulfilled. The second requirement for service connection is evidence of in-service incurrence of an injury or disease. The service treatment records (STRs) are silent for any complaints, treatments, or diagnoses of any muscle pain in service, providing evidence against this claim. The third requirement for establishing service connection is medical evidence of a nexus between the claimed in-service disease or injury and the current disability. According to the evidence submitted, the Veteran first reported the onset of muscle pain in October 2003, approximately 26 years after her separation from active duty. This 26-year period between service and her first complaint of muscle pain provides some probative evidence against the appellant's claim. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history in determining if service- connection is warranted, including a lengthy period of absence of complaints). The Veteran was afforded a VA medical examination in September 2005. As noted above, the VA examiner diagnosed mild degenerative joint disease of the feet, knees, and lumbar spine by arthritic bone survey; bilateral shoulder bicipital tendinitis with adhesive capsulitis; bilateral trapezius myositis; and bilateral cervical paravertebral myositis. The examiner stated, "It is my opinion that the currently alleged muscle pain, arthritis, shoulder pain, back and neck pain are not caused by or a result of or secondary to lack of hormones due to hysterectomy and bilateral oophorectomy for service-connected endometriosis. As seen on Hormone Foundation Publication Education of the Endocrine Society, on the internet, symptoms of menopause are hot flashes, dry vagina and painful intercourse, bone loss, depression and mood changes, and increased risk of breast cancer." The Board finds that this opinion is entitled to great probative weight, as it took into account a full physical examination as well as a review of the Veteran's history. The Board, having evaluated the probative value of the evidence in this case, finds that the Veteran's muscle pain does not result from service. The Board finds that the post- service treatment records provide particularly negative evidence against this claim, failing to indicate the problem at issue for over two decades after service. With regard to the issue of a continuity of symptoms since service, the Board finds that the Veteran's possible contention (it is not clear) of muscle pain since service is outweighed by her own claims to the VA in the past (in which she did not raised this issue, while filing other claims for other problems) and the post-service treatment records, which indicate a large gap between service and the emergence of this problem. For example, in her claim of November 1982, she made no reference to this problem. The Board must find that the Veteran's muscle pain is not related to service. The service and post-service treatment records provide highly probative evidence against this claim, outweighing the Veteran's lay statements and all other evidence that supports this claim. There is no medical indication that the condition was caused or aggravated by service and significant evidence against such a finding. Based on the above, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for muscle pain. 4. Earlier effective date Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. When an application for disability compensation is received within one year of the date of the veteran's discharge or release from service, the effective date of such award shall be the day following the veteran's release. 38 U.S.C.A. § 5110(b)(1). Appellate review of a rating decision is initiated by a notice of disagreement and completed substantive appeal after a statement of the case has been furnished. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). Here, the veteran has not asserted CUE in the 1985 or 1988 RO decisions. The Veteran contends that she should be granted an earlier effective date for her service-connected endometriosis status post hysterectomy and bilateral salpingo-oophorectomy, specifically that the effective date should be the date of separation in 1977, or alternatively, the date of filing the request to reopen the claim in 1987. The Veteran filed a formal claim for service connection for this disability in September 1982. An RO rating decision in April 1985 denied the Veteran service connection for a stomach condition, later clarified as chronic endometriosis, severe, status post total abdominal hysterectomy and bilateral salpingo oophorectomy. The Veteran was notified of this decision, and her appellate rights, in a letter that month. There was no timely appeal of this rating action. An RO determination letter in February 1988 declined to reopen the claim for service connection endometriosis status post hysterectomy and oophorectomy, finding that, although the first symptoms were elicited while in service, there was no evidence of trauma as a basis that the extensive infectious process discovered in May 1977 was acquired during service beginning in February 1977. The Veteran was notified of this decision in a letter that month. The Veteran did not file a timely Notice of Disagreement in response to the RO's decisions and therefore did not perfect a substantive appeal. Therefore, those RO decisions are final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. Absent CUE (clear and unmistakable error in a prior rating action - a claim that has not been filed by the Veteran), the Board is statutorily barred from revisiting the RO's factual or legal findings in the April 1985 rating decision or February 1988 determination letter by operation of 38 U.S.C.A. § 5110(a). See Rudd v. Nicholson, 20 Vet. App. 296 (2006). It is important for the Veteran to understand that the RO's April 1985 and February 1988 decisions pertaining to the award of service connection are final decisions, and any attempt to collaterally attack those decisions must be addressed in a CUE motion. Rudd, supra. As noted above, the Veteran has not claimed error in the 1985 or 1988 decisions. In any event, the Veteran made no requests, either formal or informal, to reopen the claim of service connection for endometriosis status post hysterectomy and bilateral salpingo-oophorectomy prior to March 13, 2003. An earlier effective date for service-connected endometriosis status post total abdominal hysterectomy and bilateral salpingo- oophorectomy is therefore denied as a matter of law. Simply stated, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The U.S. Court of Appeals for Veterans Claims (Court) has held that where the law not the evidence is dispositive, the Board should deny an appeal because of an absence of a legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veteran has failed to allege facts which meet the criteria in the law or regulations, and her claim must be denied. Duties to notify and to assist When addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2008). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in June 2003, July 2004, March 2005, and April 2005. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The RO obtained VA treatment records and the Veteran provided private treatment records. The Veteran was afforded VA examinations in August 2003 and September 2005. VA has substantially complied with previous remand directives, citing Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999); D'Aries v. Peake, 22 Vet. App. 97 (2008). The appellant and her representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced her in the adjudication of her appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board has decided upon the merits of the appellant's appeal. ORDER Service connection for back disability, shoulder disability, headaches, bilateral breast cysts, neck pain, and muscle pain is denied. An effective date earlier than March 13, 2003 for the award of service connection for endometriosis status post hysterectomy and salpingo-oophorectomy is denied. REMAND 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. 38 C.F.R. § 4.16. 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." 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has stated: In determining whether [an] appellant is entitled to a total disability rating based upon individual unemployability, the appellant's advancing age may not be considered. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task [is] to determine whether there are circumstances in this case apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the BVA must determine if there are circumstances, apart from non-service-connected disabilities, that place this veteran in a different position than other veterans with an 80 percent combined disability rating. See 38 C.F.R. § 4.16(a) (1992). Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, supra. 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." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. "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). As further provided by 38 C.F.R. § 4.16(a), "marginal employment shall not be considered substantially gainful employment." In Moore, 1 Vet. App. at 359, the Court further discussed the meaning of "substantially gainful employment". The Court noted the following standard announced by the United States Court of Appeals for the Federal 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. Where a veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In determining unemployability status, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for service-connected disabilities are met and the service-connected disabilities are found to render the veteran unemployable. 38 C.F.R. § 4.16(a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. In this case, the Veteran contends that she is unable to maintain substantially gainful employment due to her service- connected disability. The Veteran is service-connected for endometriosis status post total abdominal hysterectomy and bilateral salpingo-oophorectomy at 50 percent disabling. The Veteran's basic eligibility for individual unemployability has not been established as she has not met the schedular requirements. However, the evidence must show that a VA examination report includes an opinion concerning the impact of a service-connected condition on the Veteran's unemployment status. The August 2003 and September 2005 VA examinations afforded to the Veteran for this disability did not include such an opinion. As the Veteran claims that she merits extraschedular consideration for her service-connected endometriosis status post hysterectomy and bilateral oophorectomy, currently rated 50 percent disabling, the claim for an increased rating is inextricably intertwined with the claim for TDIU and must be remanded as well. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the Veteran's updated VA treatment records from the San Juan VAMC for the period March 2005 to the present. 2. The RO should request of the Veteran any private treatment records not already included in the claims file, if any. 3. The RO should obtain a VA medical opinion as to the following question: Is it at least as likely as not that the Veteran's service-connected disability standing alone renders the Veteran unemployable? All opinions and conclusions expressed must be supported by a complete rationale in a report. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate. The Board notes that a physical examination of the Veteran is not required unless the VA examiner deems it to be necessary in order to form a complete opinion. 4. In light of the Court's Order in this case and the evidence obtained as a result of this REMAND, the RO/AMC should consider referring this claim for extraschedular consideration to the Director of C&P under 38 C.F.R. § 3.321(b)(1). This consideration must be documented on readjudication. 5. After completing the above development, the RO should readjudicate the claims on appeal, considering any new evidence secured. If the disposition remains unfavorable, the RO should furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and afford the applicable opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ JOHN J. CROWLEY, Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs