Citation Nr: 1136859 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 06-33 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an evaluation in excess of 10 percent for chronic anal fissure. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from July 1967 to July 1970. This matter comes to the Board of Veterans' Appeals (Board) from an April 2005 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran cancelled a May 2011 Travel Board hearing which had been scheduled for him before the undersigned. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the record, as reflected on the first page of the present decision. Although the Veteran filed a formal claim for a TDIU in October 2007which was denied in August 2008 and not appealed, the Board notes that, based on the increased disability rating granted in the present decision, which allows the Veteran to meet the schedular requirements for a TDIU, and pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), which finds that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record, the Board will address the issue of entitlement to a TDIU in this decision. The issue of entitlement to special monthly compensation for an annual clothing allowance has been raised by the record in a March 2004 statement, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. The issue of entitlement to a TDIU is herein REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action is required. FINDINGS OF FACT 1. The evidentiary record's indications of the Veteran's exposure to acoustic trauma during his service in the Army, and competent and credible complaints of tinnitus since service, create a reasonable doubt as to whether his currently claimed tinnitus is a result of his active military service. 2. The Veteran's chronic anal fissure is characterized by complaints of anal itching, pain, perianal discharge, and moderate leakage of stool occurring daily, requiring the use of two pads per day. CONCLUSIONS OF LAW 1. Giving the benefit of the doubt to the Veteran, tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2011). 2. The criteria for an evaluation of 30 percent, but no higher, for chronic anal fissure have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.114, Diagnostic Code 7332 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice and, as discussed herein, the Board has not identified any. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In April 2008 and June 2008 VA sent the Veteran letters informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the Veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). The Board finds that the content of the letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the rating decisions dated in April 2005 and August 2008, August 2006 SOC, and December 2006 and December 2009 SSOCs explained the basis for the RO's action, and the SOC and SSOCs provided him with additional periods to submit more evidence. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. In addition to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Veteran was provided with this notice in the VA letter that was sent to him in April 2008. With regard to the duty to assist, VA obtained the Veteran's service treatment records (STRs), VA treatment records, and private treatment records. He also was afforded VA examinations in June 2004 and September 2009, which addressed the disability on appeal. The examination reports obtained contain sufficient information to decide the issues on appeal and further examination is not necessary. See Massey v. Brown, 7 Vet. App. 204 (1994). In a January 2010 statement, the Veteran's representative referred to the August 2008 rating decision, which noted that the Veteran had failed to report for a QTC examination, and argued that the Veteran should have been rescheduled for another QTC examination because he gave good cause for missing it. The record reflects that a subsequent September 2009 VA examination was provided after the August 2008 rating decision. Thus, it appears that the Veteran was, in fact, rescheduled for the examination that he had previously missed. Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA, as to the issues decided in the present decision. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). With respect to the service connection claim for tinnitus, in view of the disposition herein, additional discussion of those procedures is unnecessary, as any defect in the notice or assistance provided to the Veteran constituted harmless error. II. Service Connection for Tinnitus A. Applicable Law Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be: (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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, such as organic diseases of the nervous system (e.g., tinnitus), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. B. Facts and Analysis The Veteran seeks service connection for tinnitus, which he relates to his military service in the U.S. Army. Tinnitus has been variously defined. It is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane"). Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v. Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. Kelly v. Brown, 7 Vet. App. 471, 472 (1995). "Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin." 59 Fed. Reg. 17,297 (April 12, 1994). The record reflects the Veteran's contentions that he was exposed to acoustic trauma in service. He served in the Republic of Vietnam from March 1968 to March 1969 and his Military Occupational Specialty (MOS) was Wheeled Vehicle Repairman. He testified in a September 1986 RO hearing (relative to an increased rating claim for otitis media) that in Vietnam 500-pound bombs were dropped around them for about 24 hours and for a while he could not hear. He also noted that he was always stationed next to the artillery because he was a Combat Engineer. On an August 1987 VA treatment record he reported that he was around heavy equipment in the military. The Veteran's sister also submitted a statement on his behalf in October 2006, to the effect that had he told her his tinnitus problems started in service when he was working near the Phu Cuong Bridge cleaning mud off trucks when he slipped and fell into the river. Two days later he went to sick call because of pain and ringing in his ears. His ears were cleaned by a doctor but apparently a full-strength peroxide was used, which burned his skin. This was in approximately October or November 1968. The Veteran also recalled being on the Phu Cuong Bridge, which had changed to the Saigon Bridge, and was repairing the bridge when they got into a firefight with mortar rockets and small arms and had to call in B-52s. He indicated that they were so close to the B-52 bombing that they could see the trees coming up from their roots. The ringing in his ears began after the bombing finished. This was approximately one week after falling into the river. The STRs show chronic ear infections starting in September 1968 when he was in Vietnam, which is consistent with his report of having problems in his ears since around that time. His ears were cleaned with Ceruminex and Neosporin, but the ear infections persisted and did not respond to treatment during the rest of his service in Vietnam and thereafter. The Veteran is presently service connected for otitis externa with a 10 percent disability rating. After service, an August 1979 VA treatment record shows the Veteran continued to have problems with bilateral otitis externa, and the right ear had an excoriated external canal that was found to be secondary to trauma from when wax was removed. A January 1980 VA treatment record shows the Veteran's ears kept getting infected, and that his ear had started buzzing and swelling up. He also heard a high-pitched noise that seemed to come and go depending on the weather, in addition to balance problems. A June 1985 VA audiogram shows the Veteran reportedly woke up and could not hear in the left ear, which was accompanied by true vertigo and constant tinnitus in the left ear. However, a separate June 1985 VA treatment record shows the Veteran did not have tinnitus. An August 1987 VA ear, nose, and throat (ENT) examination report shows a diagnosis of constant tinnitus in the left ear. Many years later in August 2004, a private physician submitted a statement that the Veteran had tinnitus in his left ear related to a sudden neurosensory hearing loss in 1978. An August 2004 VA audiology note shows the Veteran reported a sudden hearing loss with constant, whirling tinnitus in both ears dating back to the Vietnam war (worse in the left ear). He indicated that his exposure to noise included bombs and artillery. VA treatment records dated through February 2009 show continued complaints of tinnitus in the left ear. The Veteran's reports of exposure to acoustic trauma are credible and consistent with his military service as a Wheeled Vehicle Repairman and a year of service in Vietnam. In addition, his sworn testimony that he operated with Combat Engineers is consistent with his role as a mechanic for trucks, jeeps, etc. Thus, the Board accepts the Veteran's assertions that he was exposed to acoustic trauma in service. Moreover, even though there is no treatment mentioned of tinnitus in service, the STRs specifically show treatment for chronic ear infections, which is consistent with his reports of having problems in his ears requiring them to be cleaned and tinnitus starting thereafter. A post-service treatment record also mentions problems in the ear secondary to trauma from removing wax (although it is not clear whether this is referring to removal of wax in service or after service). The determinative issue is whether the Veteran has tinnitus as a result of this in-service noise exposure and/or the chronic ear infections. The medical opinion from the private physician who stated the tinnitus was related to the loss of hearing in the left ear in 1978 is not favorable to the Veteran's claim, as he is not service-connected for bilateral hearing loss. Nonetheless, the Veteran's assertions that he has had tinnitus since service are found to be capable of lay observation, and thus his statements constitute competent evidence. The Court of Appeals for Veterans Claims has held 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. Barr v. Nicholson, 21 Vet. App. 303 (2007). In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The Veteran's statements with respect to his tinnitus are considered competent. The Board must now consider the credibility of such evidence. The Veteran has consistently throughout the record mentioned the same events in service of being exposed to acoustic trauma in service, having chronic ear infections in service, and also having experienced tinnitus since service. The Veteran's lay statements with respect to his complaints of tinnitus are deemed credible and provide probative evidence of chronic symptomatology of tinnitus since service. See Savage v. Gober, 10 Vet. App. 488 (1997). In weighing the April 2004 medical opinion that the Veteran's tinnitus is related to post-service hearing loss, the conceded exposure to acoustic trauma in service, and the statements from the Veteran and his sister regarding chronic symptomatology of tinnitus for many years, the Board finds that the evidence is in relatively equal balance in terms of whether he has tinnitus related to his military service; we will thus resolve this reasonable doubt in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Therefore, entitlement to service connection for tinnitus is warranted. III. Increased Rating for Chronic Anal Fissure A. Relevant Law Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. Part 4 (2011). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling disorder, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's disorder operate to protect claimants against an adverse decision based upon a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the disability level and any changes in the disorder. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Also, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). As noted above, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran's chronic anal fissure is rated based on impairment of sphincter control of the rectum and anus under 38 C.F.R. § 4.114, Diagnostic Code 7332. A 10 percent rating is provided for impairment of sphincter control characterized by constant slight, or occasional moderate leakage; a 30 percent rating is provided for impairment of sphincter control characterized by occasional involuntary bowel movements, necessitating wearing a pad; a 60 percent rating is provided for extensive leakage and fairly frequent involuntary bowel movements; and a 100 percent rating is provided for complete loss of sphincter control. A June 2003 private gastroenterology report notes that the Veteran denied any rectal bleeding or diarrhea. An April 2004 private rectal examination report shows the Veteran had mild anal stenosis, which was tender to palpation. A June 2004 VA examination report shows the Veteran complained of painful bowel movements and occasional drainage of pus. Physical examination showed that on palpation of the rectal sphincter there were irregularities consistent with a fissure at 6 and 12 o'clock, both of which were very tender. There were no masses in the rectum, external hemorrhoids, or ulcerations present. The diagnosis was multiple fissurectomies, still symptomatic, progressed to mild anemia. The examiner noted that the anal fissure could cause anemia and that the Veteran did have mild anemia but there was no evidence of malnourishment. There were no functional impairments related to the above conditions at that time. In November 2004, a private follow-up prostate ultrasound and biopsy report noted some tenderness due to anal fissures. A March 2006 VA anoscopy report shows the Veteran complained of peroneal and perianal pain that was relieved in part by the use of suppositories. He had bowel movements twice a day and was using Metamucil for fiber supplementation. The rectal examination showed normal tone, no blood, and no palpable lesions. The anoscopy showed no fissures or hemorrhoids. A September 2009 VA examination report shows the Veteran reported anal itching, pain, and perianal discharge. He had no diarrhea, tenesmus, or swelling. He described a leakage of stool that occurred less than a third of the day in moderate amounts. A pad was needed two times per day. He also had hemorrhoids that were constantly present. Treatment was with ointments and suppositories. Overall functional impairment was that he was unable to sit for prolonged time due to pain. A rectal examination showed that there was partial loss of sphincter control. There also was a fissure present on examination of the rectum at 6 o'clock. Rectal examination did not reveal any reduction of lumen, loss of rectal tonus, ulceration, trauma, rectal bleeding, anal infections, proctitis, spinal cord injury, or protrusions. There also were no hemorrhoids or rectum fistula detected during the rectal examination, and examination of the prostate was within normal limits. Diagnostic tests including complete blood count (CBC) showed signs of anemia. However, the examiner found that other chronic conditions were contributing to the anemia; there were no findings of malnutrition. The medical evidence shows that the Veteran's chronic anal fissure is characterized by a moderate leakage of stool occurring daily that requires wearing two pads were day. He did not report any diarrhea; therefore, there is no record of involuntary bowel movements. However, he is shown to have moderate leakage of stool that requires the daily use of two pads. In addition, he has itching, pain, and perianal discharge. Resolving all doubt in favor of the Veteran, these findings more closely approximate the criteria for a 30 percent rating under Diagnostic Code 7332. Specifically, he has constant, moderate stool leakage on a daily basis requiring the use of pads (rather than only occasional moderate stool leakage as contemplated for a 10 percent rating). The requirement of wearing a pad also is not contemplated under the 10 percent rating. Therefore, the Board finds that a 30 percent rating for the Veteran's chronic anal fissure is more appropriate. The next higher 60 percent rating is not warranted, as none of the medical evidence shows any extensive stool leakage or any occasional involuntary bowel movements. There also is no probative evidence relating the Veteran's anemia to his service-connected chronic anal fissure. The June 2004 VA examiner noted that the Veteran's disorder could cause anemia and that the Veteran had anemia; but did not provide any definitive statement as to the etiology of the anemia. The examiner also noted that there was no history of malnourishment. Additionally, the September 2009 VA examiner found that the Veteran's anemia was unrelated to the Veteran's chronic anal fissure, but rather was related to other medical disorders. Therefore, a separate or increased rating based on anemia is not warranted. The Veteran is competent to report symptoms associated with his chronic anal fissure, and there is no reason shown to doubt his credibility in this regard. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the severity of the clinical manifestations of his chronic anal fissure and his views are of no probative value. And, even if his opinion were entitled to be accorded some probative value, it is far outweighed by the medical evidence of record demonstrating clinical analysis of the rectum. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008). The record reflects that he has not required frequent hospitalization for the service connected disability, and that the manifestations of the disability are not in excess of those contemplated by the assigned ratings. Further, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned ratings. The Veteran reportedly could not sit for prolonged periods of time due to pain; but there is no indication of marked interference with employment due to the chronic anal fissure. The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, the Board has concluded that referral of this case for extra-schedular consideration for the disability on appeal is not in order. In light of the holding in Fenderson, supra, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected chronic anal fissure, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. An increased rating of 30 percent rating is assigned for chronic anal fissure. However, the preponderance of the evidence is against the assignment of an evaluation higher than 30 percent for this service-connected disability. ORDER Entitlement to service connection for tinnitus is granted. Entitlement to an evaluation of 30 percent, but no higher, for chronic anal fissure is granted, subject to the pertinent regulatory criteria relating to the payment of monetary awards. REMAND VA will grant a total disability evaluation for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his or her education and occupational experience, by reason of service-connected disability or disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, VA Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). 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). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment because of economic circumstances is not enough. A high rating in itself is a 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. See Van Hoose, supra. As noted, consideration may not be given to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is currently service connected for posttraumatic stress disorder with a 50 percent disability rating; bilateral otitis externa with a 10 percent disability rating; and after the present Board decision is implemented by the RO, a 30 percent disability rating for chronic anal fissure. Therefore, the Veteran meets the schedular requirements for a TDIU, as he has one disability rating of at least 40 percent or higher and sufficient additional disability ratings to warrant a combined rating of 70 percent for his service-connected disabilities. The Veteran has indicated that he has not worked full-time since 1989 and that he is presently unemployable. Given that he now meets the threshold percentage requirements for a TDIU, additional development should be conducted to determine whether he is unemployable as a result of his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter which describes the evidence necessary to substantiate a claim for TDIU, including the Veteran's duties to substantiate the record, and VA's duties. Allow for a reasonable period to respond. 2. Then, determine whether the Veteran is entitled to a TDIU. If deemed necessary, schedule the Veteran for the appropriate VA examination(s) to determine whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that he is unemployable as a result of his service-connected disabilities; or whether being unemployable as a result of his service-connected disabilities is unlikely (i.e. less than a 50/50 degree of probability). Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The claims file, to include a copy of this Remand, must be reviewed in conjunction with the examination. All relevant information of record should be considered. Any opinion provided should include discussion of specific evidence of record. If any question cannot be answered without resorting to pure speculation, the examiner must provide a complete explanation why those questions cannot be answered. 3. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence, and readjudicated. If the benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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. 2010). ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs