Citation Nr: 1315017 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 07-39 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a disability rating higher than 10 percent prior to August 21, 2007, for right ankle inversion injury with history of fracture, ligament repair, and residual scar with paresthesia. 2. Entitlement to a disability rating higher than 20 percent from February 1, 2008, to December 10, 2011, for right ankle inversion injury with history of fracture, ligament repair, and residual scar with paresthesia. 3. Entitlement from December 11, 2011, to right ankle disability ratings higher than a 20 percent rating for inversion injury with history of fracture and ligament repair, and a separate 10 percent rating for right heel scar with paresthesia. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from May 2001 to October 2001. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the St. Paul, Minnesota Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a July 2007 rating decision, the RO continued a 10 percent disability rating for right ankle inversion injury with history of fracture, ligament repair, and residual scar with paresthesia. The RO also denied a TDIU. In a July 2008 rating decision, the RO granted a 20 percent rating, effective February 1, 2008, for right ankle inversion injury with history of fracture, ligament repair, and residual scar with paresthesia. In a May 2012 rating decision the RO assigned, effective December 11, 2011, a 20 percent rating for inversion injury with history of fracture and ligament repair, and granted separate service connection and a separate 10 percent rating for right heel scar with paresthesia. In September 2011, the Board remanded the claims on appeal to the RO via the Appeals Management Center (AMC), for the development of additional evidence. Regarding the appealed issues that the Board is deciding at this time, the Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed both the Veteran's physical claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. In March 2009, the Veteran submitted a claim for a temporary total disability rating for convalescence following a February 12, 2009, right foot and ankle surgery. The issue of a temporary total disability rating for convalescence following a February 12, 2009, right foot and ankle surgery thus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. FINDINGS OF FACT 1. Prior to August 21, 2007, manifestations of right ankle disability included one right heel scar with paresthesia and numbness that produced impairment separate from limitation of motion of the right ankle. 2. Prior to August 21, 2007, right ankle inversion injury with history of fracture and ligament repair was manifested by pain, weakness, and limitation of motion together consistent with moderate limitation of motion. 3. From February 1, 2008, right ankle inversion injury with history of fracture and ligament repair has been manifested by pain, weakness, and limitation of motion together consistent with marked limitation of motion. CONCLUSIONS OF LAW 1. Prior to August 21, 2007, right heel scar with paresthesia warranted and met the criteria for a separate 10 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Code 7804 (2012). 2. Prior to August 21, 2007, right ankle inversion injury with history of fracture and ligament repair warranted and met the criteria for a separate 10 percent disability rating. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271 (2012). 3. From February 1, 2008, right ankle inversion injury with history of fracture and ligament repair has not met the criteria for a disability rating higher than 20 percent. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5270, 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran with VCAA notice in a June 2007 letter, issued before the rating decisions that the Veteran has appealed. That letter addressed the information and evidence necessary to substantiate claims for increased disability ratings and for a TDIU, and informed the Veteran how VA assigns effective dates. The letter also addressed who was to provide the evidence. The claims file contains the Veteran's service medical records, post-service medical records, records from the United States Social Security Administration (SSA), and VA medical examination reports. The VA medical examination reports are adequate for evaluating the Veteran's right ankle disability. In the September 2011 remand the Board instructed the AMC or RO to obtain the Veteran's VA medical treatment records and any other medical records for which the Veteran signed releases. The AMC or RO obtained the Veteran's VA treatment records. The Veteran did not sign releases for VA to obtain any other medical treatment records. The Board instructed the AMC or RO to schedule the Veteran for a VA medical examination with file review and findings and opinions regarding the Veteran's right ankle disability rating and TDIU claims. The Veteran had additional VA examinations addressing his right ankle disability. The Board is satisfied that there has been substantial compliance with the remand directives regarding his right ankle disability rating claims, such that the Board may proceed with review of those claims. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his right ankle disability rating claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument and reporting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of those claims on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Ratings for Right Ankle Disabilities The Veteran sustained a right ankle injury during service. The RO initially described the Veteran's service-connected right ankle disability as inversion injury with history of fracture, ligament repair, and residual scar with paresthesia. The RO initially assigned a 10 percent disability rating. In August 21, 2007, the Veteran underwent right ankle surgery. The RO assigned a temporary total rating for convalescence that was in effect from August 21, 2007, through January 31, 2008. The Veteran had additional right ankle surgeries on February 12, 2009, and June 29, 2009. In a May 2012 rating decision, the RO assigned, effective December 11, 2011, a 20 percent rating for inversion injury with history of fracture and ligament repair, and granted separate service connection and a separate 10 percent rating for right heel scar with paresthesia. The Veteran has pending appeals for ratings higher than 10 percent prior to August 21, 2007, and 20 percent from February 1, 2008, for right ankle inversion injury with history of fracture, ligament repair, and residual scar with paresthesia, and for ratings from December 11, 2011 higher than a 20 percent rating for inversion injury with history of fracture and ligament repair, and a separate 10 percent rating for right heel scar with paresthesia. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10 (2012). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluation of a musculoskeletal disability is based on limitation of motion, VA regulations provide, and the Court has emphasized, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the Board will consider whether different ratings are warranted for different time periods. In addition, the Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's continued appeal of right ankle disability ratings include appeal of the initial separate ratings the RO assigned for inversion injury with history of fracture and ligament repair, and for right heel scar with paresthesia. The Board will consider the evidence for the entire period since December 11, 2011, the effective date of separate ratings for those disabilities, and will consider whether higher ratings are warranted for any period since then. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The RO evaluated the Veteran's right ankle disability under 38 C.F.R. § 4.124a, Diagnostic Code 8521 (2012). Under that code paralysis of the external popliteal (or common peroneal) nerve, is evaluated as follows: Complete; foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes ................................................ 40 percent Incomplete: Severe .................................................. 30 percent Moderate ............................................... 20 percent Mild .................................................... 10 percent Limitation of motion of the ankle is rated at 20 percent if marked and 10 percent if moderate. 38 C.F.R. § 4.71a, Diagnostic Code 5271. For VA rating purposes normal range of motion of the ankle is to 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Ankylosis of the ankle is rated at 20 to 40 percent, depending on the position of the foot due to the ankle ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5270. The RO evaluated the right heel scar with parasthesia under 38 C.F.R. § 4.118, Diagnostic Code 7804. Under that code unstable or painful scars are rated at 30 percent if there are five or more, 20 percent if there are three or four, and 10 percent if there are one or two. An unstable scar is one that has frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful 10 percent is added to the rating. In an October 2003 VA medical examination, the Veteran reported that his right ankle injury occurred in service in 2001 when the ankle turned in while he was going down stairs. He stated that he was found to have hairline fracture and the ankle was splinted. He reported that torn ligaments were found at a later date. He indicated that after service, in July 2002, he had surgery on the ankle with ligament repair. He stated that at the time of the 2003 examination he experienced right ankle stiffness and swelling with activity about two times per week. On examination the Veteran's gait was within normal limits. He walked on his heels and toes without difficulty. The examiner observed a 17 by 1 centimeter scar on the lateral calf. The Veteran reported paresthesia over the scar and the dorsum of the foot, in a 4 by 6 centimeter area. The examiner reported that the right ankle had motion to 70 degrees of dorsiflexion and 80 degrees of plantar flexion. The examiner described this as a loss of 10 degrees of dorsiflexion. In VA medical treatment in September 2005, the Veteran reported frequent pain and swelling in his right ankle. He indicated that he worked installing wood floors. In January 2006 he reported right ankle pain, weakness, and instability. He expressed the belief that he was unemployable because of his right ankle disability. A treating physician observed that the Veteran walked with a limp. The Veteran was able to walk on his heels and toes without difficulty. There was pain to palpation over the peroneal and posterior tibial tendons. The right lower extremity was neurovascularly intact except for a small area around the surgical incision. The physician's impression was right ankle pain possibly related to peroneal tendinitis. The physician recommended physical therapy. In a February 2006 statement, the Veteran wrote that after standing for a few hours his right ankle swelled and hurt so much that he had to sit down and ice the foot. In VA treatment in April 2006 a treating clinician observed evidence of tenderness and mild edema of the Veteran's right ankle. In May 2006, the Veteran reported having a serious right ankle injury that impaired his ability to stand and walk. In July 2006, he reported ongoing right ankle pain. In VA treatment in February 2007 the Veteran reported hearing a pop in his right ankle while walking, and then having pain and swelling in the ankle. In April 2007, he reported ongoing right ankle pain and numbness surrounding his 2002 surgical incision area. He reported that he did not work because of his right ankle pain. X-rays showed evidence of past peroneal instability reconstruction surgery. The examiner found that the Veteran had sensation in his right lower extremity, and had paresthesias with palpation over the lateral border of the foot and along his incision on the posterior aspect of the fibula. The Veteran had full strength in the ankle. He had pain with eversion of the ankle and will forced inversion of the ankle. The ankle and peroneal tendons did not appear to have any instability. Palpation over the peroneal tendons was exquisitely tender. In VA treatment in May 2007, the Veteran reported that he tripped and twisted his right ankle and then developed severe pain. He was given a crutch and instructed to continue using an ace bandage. Later in May a treating clinician observed that the Veteran used a cane when walking. In a May 2007 statement, the Veteran wrote that his right ankle nerve disorder had worsened. He stated that he wore an ace bandage all of the time, and that the ankle popped in and out of the socket. He reported that he was taking more pain medication and had to use a cane for stability. He stated that there were days when he could not walk, and that he had been in physical therapy off and on for five years. He expressed that he could not take employment that required standing. On VA examination in June 2007 the Veteran reported that his right ankle problems had worsened since the 2003 VA examination. He stated that he had to walk flat-footed, otherwise his got severe pain over the lateral malleolus and his ankle dislocated. He reported right ankle pain, burning sensation, stiffness, swelling, instability, and giving way, and numbness over the lateral dorsum of the right foot. He indicated that his right ankle dislocated or gave way one to three times per month. He reported that the ankle locked once or twice a year. He stated that he always used a cane when walking. He indicated that his was limited to standing between one and three hours and to walking between a quarter mile and a mile. The examining physician observed that the Veteran had an antalgic gait. The range of motion of the right ankle was to 10 degrees of dorsiflexion and 45 degrees of plantar flexion, with no additional limitation of motion on repetitive use. The examiner provided a diagnosis of right ankle hairline fracture and debridement and ligament repair with residual scar, paresthesia, and limited motion. The Veteran underwent right ankle surgery at a VA facility on August 21, 2007. The surgery was a subtalar fusion and a Brostrom lateral ligament reconstruction. As noted above, a temporary total rating was in effect from August 21, 2007, through January 31, 2008. On VA orthopedic treatment in February and March 2008, the Veteran reported that he felt that his right ankle was stable. He stated that he had ongoing lateral ankle pain and that he had heel pain. A clinician began use of a bone stimulator to promote healing. On VA examination in April 2008, the Veteran reported that he was limited to standing two hours or walking three to four blocks before he had to get off of his right foot due to pain. He stated that he had mild ankle pain with any walking and worse pain after walking three to four blocks. The Veteran indicated that he was not working. The examiner expressed the opinion that it was not likely that the Veteran's right ankle could tolerate the floor installation work he had done in the past. The examiner stated that at present the Veteran would be limited to sedentary work. The examiner observed that the Veteran's gait was irregular, with guarding on the right. The Veteran had numbness and tingling in the foot. There was pain and tenderness in the inferior malleolus. There was slight edema in the foot. Suture lines were healing. Motion of the right ankle was to 10 degrees of dorsiflexion and 15 degrees of plantar flexion, with no further pain or loss of motion after three repetitions. The examiner stated that the prognosis for function in the right ankle was unknown pending further physical therapy. In VA treatment in July 2008, the Veteran reported ongoing daily aching pain in his right ankle and ongoing numbness in his right foot. He indicated that he had been walking up to a mile. The treating clinician observed an antalgic gait favoring the right lower extremity. In VA orthopedic treatment in November 2008, the Veteran reported ongoing right ankle pain and a feeling that the ankle gave out on him. The clinician observed an antalgic gait, limited dorsiflexion, and pain with dorsiflexion and plantar flexion. The ankle was stable on the anterior drawer test. There was no subtalar motion due to the surgical fusion. There was decreased sensation over the lateral sensation, and tenderness to palpation over the heel where the screws were inserted. He received a lidocaine injection to address his right ankle pain. In December 2008, the Veteran reported that the injection relieved the pain for four hours. The Veteran reported pain in heel in the area of the fixation screws. He related a tingling sensation on the side of the foot by the old incision. The clinician administered an Achilles bursa injection. In 2009, the Veteran had private treatment with St. Cloud Orthopedics. A January 2009 CT scan showed large screws from the 2008 surgery, and early degenerative changes involving the tibiotalar joint. A treating clinician concluded that the surgical screws might be causing the Veteran pain, and proposed removing the screws. The Veteran underwent surgery on February 12, 2009, to remove the screws. A treating clinician reported that the Veteran began gradual weight bearing with crutches on February 17 and as of March 3 was able to weight bear as tolerated. Later in March 2009, the Veteran had VA treatment for infection of the right ankle incision from the February 2009 surgery. In April 2009 the Veteran reported that since the February 2009 surgery he had mild improvement in pain from 6-7 out of 10 to 5-6 out of 10. On June 29, 2009, the Veteran had another right ankle and foot surgery at St. Cloud Orthopedics. In VA treatment in August 2009, the Veteran expressed frustration that he continued to have so much right ankle pain. He used a cane with walking. In VA treatment in May 2010, the Veteran reported that ongoing physical therapy for right ankle and other joint problems was helpful, but that his level of functioning remained low. He stated that he was not able to walk a mile. In August 2010 the Veteran was provided with a TENS unit to address pain in his right ankle and other areas. In a July 2011 VA examination that mainly addressed a low back disorder, the Veteran reported that his right ankle disability made him unable to stand for more than two hours. On neurological examination, sensation to pinprick and to light touch was absent in the right lateral foot and ankle. Motor function of the right ankle was reduced to 4/5. The Veteran reported difficulty standing on his right heel and toes. On VA examination of his right ankle in December 2011, the Veteran reported that his right ankle had daily pain, stiffness, lack of endurance, and infrequent locking. He stated that he had flare-ups of worse symptoms seven to ten days per month and had to keep the ankle elevated and iced during those flare-ups. He indicated that over the preceding year he remained in bed due to his right ankle disorder for one to two days on about 25 occasions. The Veteran stated that his right ankle problems required him to sit after 25 minutes of standing and limited him to one to two blocks of walking before stopping and sitting. The examiner found that the right ankle had 5 degrees of dorsiflexion and 25 degrees of plantar flexion, with pain throughout both ranges of motion. After three repetitions motion was limited to 0 degrees of dorsiflexion and 15 degrees of plantar flexion. The examiner found that the Veteran's right ankle had functional impairment in the forms of limited movement, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weightbearing. The right ankle was tender to palpation. Muscle strength was 4/5. On testing, the right ankle joint was stable. There was ankylosis of the right ankle, subtalar, and/or tarsal joint in a good weightbearing position. CT imaging showed osseous union along the lateral greater and anterior margin of the posterior subtalar joint space although the remainder of the subtalar joint spaces were unfused. The examiner indicated that right ankle scars were painful or unstable, with paresthesia and numbness to the lateral surface of the foot and in the region of the scar, and tissue tenderness to palpation anterior and inferior to the malleolus. The examiner reported that there was one painful scar, and that no scars that were both painful and unstable. The examiner noted that the Veteran used a cane with walking short distances and a walker for any significant distance. The examiner stated that the Veteran's right ankle disability would limit him to work with limited weightbearing, and that his daily medication for right ankle pain was incompatible with operating industrial equipment or a motorized vehicle. The examiner expressed the opinion that the Veteran's right ankle disability left him capable of gainful employment in a sedentary or light duty environment, and did not preclude obtaining or maintaining substantially gainful employment. On VA examination in February 2012, the Veteran reported constant right ankle pain ranging 4 to 7 out of 10. He stated that he had difficulty going up or down stairs. He indicated that he regularly used a cane with walking due to ankle and knee giving way. He stated that he could not stand longer than 90 minutes, and could not walk a mile. The examiner observed tenderness and guarding of movement of the right ankle. The examiner indicated that the right ankle was in ankylosis. Right ankle muscle strength was 4/5 in dorsiflexion and 5/5 in plantar flexion. There was decreased sensation to light touch in the right ankle and foot. Effective in December 2011, the RO evaluated the Veteran's right ankle disability by assigning separate ratings for a scar with paresthesia and for injury manifested by impaired function including limitation of motion. The medical evidence shows that before the August 2007 surgery the Veteran had both paresthesia around a surgical scar and impaired ankle function including limitation of motion. The Board finds that for the period before the August 2007 surgery it is appropriate to assign separate ratings for the paresthesia and the limitation of motion, as they are different types of impairment. The Board grants a 10 percent rating for right ankle scar with paresthesia. There is only one painful scar, and that scar is not unstable, so a rating higher than 10 percent was not warranted under Diagnostic Code 7804. The Board finds that for that period a 10 percent rating is appropriate for the functional impairment other than the scar. Limitation of motion of the ankle during that period was not more than moderate, so the disability picture more nearly approximated the criteria for a 10 percent rating than those for a 20 percent rating. From February 1, 2008, (following the post-surgical temporary total rating) continuation of separate paresthesia and limitation of motion ratings is appropriate, as those types of impairment continued. The area of numbness and paresthesia remained as before the surgery, so a 10 percent rating remains appropriate. With respect to impairment of ankle function, limitation of dorsiflexion and plantar flexion has more nearly approximated marked than moderate. The Board therefore grants a 20 percent rating based on limitation of motion of the ankle. The Board notes that in February 2012 a VA examiner indicated that the Veteran's right ankle was in ankylosis. In examinations the same day, however, muscle strength of the right ankle in dorsiflexion and plantar flexion was measured. The measurement of muscle strength for those motions appears to conflict with a status of ankylosis. In any case, there has been no finding that any ankylosis was in a position that would warrant a rating higher than 20 percent under Diagnostic Code 5270. The impairment of motion of the ankle thus does not warrant a rating higher than 20 percent. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran has had multiple right ankle surgeries, however, his symptoms fit squarely within the rating criteria. The rating criteria reasonably describe the Veteran's disability levels and the symptomatology of his ankle disability. In addition, the regular rating criteria provide for higher rating when certain symptoms are present. Thus, referral for extra-schedular consideration is not warranted. ORDER Prior to August 21, 2007, a separate 10 percent disability rating for right heel scar with paresthesia is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. Prior to August 21, 2007, a separate 10 percent rating for right ankle inversion injury with history of fracture and ligament repair is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. From February 1, 2008, a disability rating higher than 20 percent for right ankle inversion injury with history of fracture and ligament repair is denied. REMAND The Veteran is seeking a TDIU. VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. 38 C.F.R. § 4.16(a) (2012). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b) (2012). While the Veteran's TDIU claim has been pending the RO granted, effective in August 2010, service connection for disabilities of the lumbar spine, right hip, and left knee, each found as secondary to the Veteran's right ankle disability. In the September 2011 remand, the Board instructed that the Veteran have a VA medical examination of his right ankle and that the examiner review the claims file and provide an opinion as to the likelihood that the combined effects of the Veteran's service-connected disabilities preclude the Veteran from obtaining and maintaining a substantially gainful occupation. In the December 2011 VA examination scheduled to address the Board remand, the examiner did not provide an opinion regarding claimed unemployability due to all service-connected disabilities. The Court has ruled that the Board has a duty under law to ensure that the RO complies with remand orders of the Board or the Court. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board will again remand the claim for a physician to review the file, consider medical examination and treatment record evidence regarding the Veteran's service-connected right ankle orthopedic and neurological disabilities and his service-connected lumbar spine, right hip, and left knee disabilities, and provide an opinion as to the likelihood that the combined effects of those disabilities make him unemployable. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The RO should provide the reviewing physician all evidence that is in the Virtual VA electronic claims file and not in the paper claims file and that is relevant to the remanded claim. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran's claims file and any relevant information from his Virtual VA electronic claims file to a physician for review. Ask the physician to consider the evidence regarding the Veteran's service-connected disabilities: right ankle disability status post injury and surgeries, right ankle and foot scarring with paresthesia, lumbosacral spine and disc disability, right hip disability, and left knee disability, and to provide an opinion as to whether it is at least as likely as not that the combined effects of those service-connected disabilities (without consideration of any other disabilities he may have) make the Veteran unable to obtain or maintain a substantially gainful occupation. Inform the physician that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Ask the physician to explain the reasoning leading to his or her conclusions. 2. Then, readjudicate the TDIU claim. In readjudicating the claim, consider whether the Veteran's service-connected disabilities result from a common etiology for purposes of constituting a disability ratable at 60 percent or more. Also consider whether the case warrants consideration of a TDIU on an extraschedular under 38 C.F.R. § 4.16(b). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (per curium). If any benefit sought is not granted, issue the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. Then return the case to the Board if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the claim. The Veteran has the right to submit additional evidence and argument on the matter that 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. 2012). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs