Citation Nr: 1316062 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 10-14 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating higher than 40 percent for post-traumatic arthritis of the left ankle, including special monthly compensation (SMC) prior to January 10, 2013, for loss of use of the left ankle and foot. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from February 18, 1969 to March 7, 1969. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied a rating higher than 30 percent for the Veteran's left ankle disability and a TDIU. The Board remanded these claims in October 2012 for further development. The RO issued a January 2013 rating decision, on remand, granting a higher 40 percent rating for the left ankle disability retroactively effective from March 18, 2009, the date of receipt of the Veteran's claim for a higher rating for this disability. Effective January 10, 2013, the date of the VA compensation examination the Veteran had undergone on remand, the RO also granted SMC for loss of use of the left ankle and foot, revised the characterization of the disability to this and assigned a new Diagnostic Code, but continued the newly-assigned 40 percent rating. The RO also granted service connection for associated post-surgical scars of the left ankle and assigned an initial 0 percent (noncompensable) rating for these scars retroactively effective from the receipt of the claim on March 18, 2009, but a higher 10 percent rating for these scars as of December 14, 2011, the date of a prior VA compensation examination. As well, the RO determined the Veteran was entitled to automobile and adaptive equipment. He since has continued to appeal, requesting an even higher rating for his left ankle disability, including SMC prior to January 10, 2013. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is seeking the highest possible rating for a disability, absent express indication to the contrary). A portion of the Veteran's records are in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because this appeal was processed as part of the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The assigned 40 percent rating is the maximum schedular rating available for the Veteran's left ankle disability. 2. Prior to January 10, 2013, his left ankle disability did not involve a level of impairment comparable to amputation with prosthesis. 3. His service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria are not met for a rating higher than 40 percent for the left ankle disability, including SMC for loss of use of the left ankle and foot prior to January 10, 2013. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.350, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.63, 4.71a, Diagnostic Codes 5167, 5270 (2012). 2. The criteria also are not met for a TDIU, including for referral of this claim for extra-schedular consideration. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a) and (b), 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). If the claim is for service connection, this notice should also include indication that a "downstream" disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, this notice should precede the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). However, both the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) and the U. S. Court of Appeals for Veterans Claims (Court/CAVC) have clarified that, even when notice is not provided prior to initially adjudicating a claim or, if provided, was inadequate or incomplete, VA need only provide all necessary notice, give the Veteran opportunity to submit additional evidence and/or argument in response, and then readjudicate the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the essential fairness of the adjudication, as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (holding that an SOC or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim. Here, prior to the initial adjudication of the Veteran's claims, so in the preferred sequence, letters dated in April 2009 were sent to him in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). He was notified of the evidence that was needed to substantiate his claims, of what information and evidence that VA would obtain, of what information and evidence he was expected to provide, and that VA would assist him in obtaining evidence, but that it was his ultimate responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He therefore has received all required notice concerning his claims. Consider also that, in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), the Federal Circuit Court overturned the lower CAVC's ruling in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), regarding the type and extent of notice that must be provided in increased-rating claims. Specifically, the Federal Circuit Court concluded that generic notice in response to a claim for an increased rating is all that is required and that VA need not also apprise the Veteran of other potentially applicable Diagnostic Codes or daily-life evidence. B. Duty to Assist The Veteran's VA treatment records, private treatment records, Social Security Administration (SSA) records, and lay statements have been associated with the claims file for consideration. He was also provided VA compensation examinations, both to assess and reassess the severity of his left ankle disability and to determine whether this left ankle disability and his other service-connected disabilities render him unemployable so as to in turn warrant a TDIU. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file, contain a description of the history of the disabilities at issue, document and consider the relevant medical facts and principles, record the relevant findings for rating the Veteran's left ankle condition, and provide opinions regarding the impact of his service-connected conditions on his employability. VA's duty to assist with respect to obtaining a VA examination or opinion therefore has been met. Indeed, his claims were remanded in October 2012 specifically to obtain all outstanding VA and private treatment records and to provide him another VA compensation examination. And as those directives since have been completed, there has been compliance with these instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board commits error as a matter of law in failing to ensure compliance). VA has provided the Veteran opportunity to submit evidence and argument in support of his claims. He has not made the Board aware of any additional evidence needing to be obtained prior to appellate review of these claims, so no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. In fact, when responding in February 2013 to the most recent SSOC that had been issued just the prior month, so in January 2013, the Veteran indicated he did not have any additional evidence regarding his appeal. Thus, in order to expedite processing of his claims, he asked that the RO go ahead and forward his case back to the Board without waiting the full 30 days he had to submit additional evidence and/or argument. He further indicated that, if in the future he had additional evidence to submit, he was waiving his right to have the RO initially consider it, preferring instead to have the Board do so in the first instance and proceed with adjudication of his appeal. See 38 C.F.R. §§ 20.800, 20.1304. He indicated that he understood the waiver would not affect whether he is entitled to VA benefits nor effect the date of entitlement or any benefits due. His attorney since has submitted additional argument concerning the claims later in February 2013. Increased Rating A. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation already has been established and increase in disability rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has reviewed all evidence of record, the more critical evidence consists of that generated during the appeal period. In particular, the relevant temporal focus is on the evidence from one year immediately preceding the filing of this increased-rating claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). VA must assess the level of disability from that point going forward and determine whether the level of disability warrants the assignment of different disability ratings at different times since, a practice known as a "staged" rating. The Court has held that a staged rating is appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). See also Fenderson v. West, 12 Vet. App 119 (1999) (initially applying this practice in the context of an initial, rather than already established, rating). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that VA must analyze evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other Diagnostic Codes assessing musculoskeletal function. Painful motion is an important factor of disability, and it is the intention of the Rating Schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. 4.59 is not just limited to cases involving arthritis). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Consider also that, when the Veteran already has the highest possible rating based on limitation of motion, it is not necessary to consider the factors discussed in DeLuca, including the affect pain has on his range of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). As a result of the January 2013 RO decision recently issued on remand, the Veteran now has a higher 40 percent rating for his left ankle disability as of January 10, 2013. Also as of January 10, 2013, he was determined entitled to SMC for loss of use of his left ankle and foot (one foot), so since that date his disability has been rated under Diagnostic Code 5167 whereas it previously was rated as post-traumatic arthritis of the left ankle under Diagnostic Code 5271-5270. A 40 percent rating exceeds the highest possible rating of 20 percent available under Diagnostic Code 5271, so even when there is what amounts to "marked" limitation of motion of the ankle, and is the maximum schedular rating available under Diagnostic Code 5270, even when there is ankylosis of the ankle, meaning what amounts to complete immobility of the ankle, i.e., no range of motion at all. Ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint." Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (quoting from Stedman's Medical Dictionary 87 (25th ed. 1990)). According to Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988), ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. 40 percent also is the rating assigned under Diagnostic Code 5167 when, as already has been conceded, there is loss of use of a foot. Therefore, resolution of this claim turns on whether the Veteran had this level of impairment prior to January 10, 2013, since, as of that date, he has had the higher 40 percent rating and has been determined entitled to SMC for loss of use of his left ankle and foot. The most recent February 2013 statement from the Veteran's attorney mistakenly indicated that SMC was warranted, but had not yet been granted, when, in actuality, it was separately in the RO's January 2013 decision, that is, in addition to the higher 40 percent rating. The term "loss of use" of a foot is defined in 38 C.F.R. § 3.350(a)(2) as where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. See also 38 C.F.R. § 4.63 (2012). Examples under 38 C.F.R. § 3.350(a)(2) that constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 31/2 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot-drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve. See also 38 C.F.R. § 4.63. In Tucker v. West, 11 Vet. App. 369, 373 (1999), the Court held that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The Court also held that, in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision. 38 C.F.R. § 3.350(a)(2) and 38 C.F.R. § 4.63 only provide examples and not an exclusive list of manifestations of loss of use of a foot. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. See 38 C.F.R. § 4.21 (2012) (application of rating schedule); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the specified factors for each incremental rating were examples rather than requirements for a particular rating; analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme). B. Evidence and Analysis In an April 2009 statement, the Veteran reported that he could not go up or down stairs or hills. He used a cane for balance but sometimes fell nonetheless. He was able to complete housework and cook, but had difficulty keeping his house clean. A June 2009 VA examination noted complaints of instability and giving way. On examination, the Veteran ambulated with a limp and utilized a cane. He braced himself upon sitting down and standing up. Private records contemporaneously dated in July 2009 noted he could only ambulate for an hour at a time, and no more than a few hours in a day. On examination, he had an antalgic gait and his left lower extremity was 2 cm. smaller than his right, evidencing atrophy. The treating physician stated the Veteran's disabilities and restrictions of the left lower extremity were in excess of "70 percent." VA treatment records dated in May 2011 reflect continued complaints of balance problems. An additional VA examination in December 2011 noted the Veteran's ankle was ankylosed at 14 degrees of plantar flexion. The examiner also noted instability of station, locomotion disturbance, and atrophy from disuse. Muscle strength was 1/5. The Veteran reported occasional use of crutches and a wheelchair and constant use of a cane. The examiner indicated the Veteran was unable to stand more than 10 minutes or walk more than 50 yards. He was unable to wear shoes or lift more than 15 pounds. However, the examiner specifically noted that functioning was not so diminished that amputation with prosthesis would serve the Veteran equally well. Based on this collective body of evidence, a rating under Diagnostic Code 5167 for loss of use of the left foot is not warranted prior to January 10, 2013. The December 2011 VA examiner (who examined the Veteran prior to his most recent January 10, 2013 VA examination) noted that the Veteran's level of functioning had not decreased to a point equivalent to amputation with prosthesis. This is supported by the earlier statement from the Veteran's private physician, who stated that the level of impairment of the left lower extremity was over 70 percent, which, while suggesting the Veteran had significant impairment, indeed, even what amounted to severe impairment, was not necessarily tantamount to or the equivalent of total, or 100 percent, loss of function of his left ankle and left foot. Moreover, while the remaining evidence also admittedly shows severe symptoms and limitations on account of this disability, they are contemplated by the higher 40 percent rating that has been in effect since the filing of this increased-rating claim on March 18, 2009, and by the additional SMC because of loss of use that has been in effect since the January 10, 2013 VA compensation examination. In Harper v. Brown, 10 Vet. App. 125, 126 (1997), the Court discussed the three possible effective dates that may be assigned for a higher rating or, here, additional, i.e., "special monthly" compensation for a service-connected disability, depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). Based on the evidence, the Veteran has been deemed entitled to the higher 40 percent rating for his left ankle disability as of the filing of his claim for an increased rating for this disability on March 18, 2009. Whereas it was not shown that he was additionally entitled to SMC because of this disability until his VA compensation examination on January 10, 2013. So these ratings, at these times, are shown to be correct. C. Extra-schedular Consideration In evaluating the Veteran's claims for higher ratings, the Board also has considered whether he is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). As part of this evaluation for an extra-schedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit-of-the-doubt doctrine applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected disability in considering whether he is entitled to an extra-schedular rating. According to the VA regulation, an extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). According to Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. The Veterans Court (CAVC) has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) . . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16." See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). The former requires marked interference with employment; whereas the latter requires evidence of unemployability. Id.; see also Thun v. Peake, 22 Vet. App. 111 (2008), ("[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable.") But with respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's left ankle condition with the established criteria found in the Rating Schedule for this disability shows that the rating criteria reasonably describes his disability level and symptomatology, as discussed above. But to reiterate, the Rating Schedule contemplates total loss of use of his left foot under DC 5167, and his disability resultantly has been rated under this Diagnostic Code for this effectively since January 10, 2013, by providing the additional compensation (i.e., SMC). Moreover, to the extent he has chronic pain and consequent limitation of motion of his left ankle and foot, indeed, complete immobility and what amounts to ankylosis, this too is contemplated by the Rating Schedule in the way of DCs 5270 and 5271. There is no indication, then, his disability results in any impairment extending beyond total loss of use of the foot and falling so far outside of the Rating Schedule as to render it inadequate. See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). TDIU A. Applicable Law The Veteran alleges that his service-connected disabilities render him unemployable and, therefore, entitled to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or disabilities that have not been service connected. See 38 C.F.R. §§ 3.341(a), 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15; see also 38 C.F.R. § 3.340(a) (providing that to establish entitlement to a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Under VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), "substantially gainful employment," is defined as "that 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." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment" and noted the following standard announced by the United States Federal Court of Appeals 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. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U. S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. In determining entitlement to a TDIU, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability, without regard to advancing age or disabilities for which service connection has not been established. See 38 C.F.R. §§ 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. VAOPGCPREC 75-91. Thus, the criteria include a subjective (not just objective) standard. See id. VA's General Counsel further observed that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. Id. Importantly, requiring a Veteran to prove 100 percent or total unemployability is different from requiring proof that he cannot obtain or maintain "substantially gainful employment." The use of the word "substantially" suggests intent to impart flexibility into a determination of overall employability, whereas a requirement that he prove 100-percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Moreover, in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Court held that the Board may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See also Beaty v. Brown, 6 Vet. App. 532, 537 (1994); Ferraro v. Derwinski, 1 Vet. App. 362 , 331-32 (1991). But all of that said, the mere fact that a claimant is unemployed or has difficulty obtaining employment is insufficient reason to find that he is unemployable. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment, as VA's Rating Schedule is already designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id.; see also 38 C.F.R. §§ 4.1, 4.15 (2012). In order to satisfy the criteria for schedular consideration of entitlement to a TDIU, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, disabilities affecting a single body system such as orthopedic disabilities, multiple injuries incurred in action, or multiple disabilities incurred as a prisoner of war will be considered as one disability for purposes of determining whether the Veteran satisfies these threshold minimum rating requirements. Id. Here, service connection is in effect for post-traumatic arthritis of the left ankle that since has progressed to loss of use of the left ankle and foot, rated as 40-percent disabling; and for two sets of post-surgical left ankle scars, one rated as 10-percent disabling from December 14, 2011, and the other rated as 0-percent disabling. As such, the Veteran's combined disability rating is 40 percent prior to December 14, 2011, and 50 percent from that date onwards. Accordingly, because he does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, he does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). Nevertheless, a TDIU still may be awarded on an extra-schedular basis under the alternative provisions of 38 C.F.R. § 4.16(b) if it is shown he is indeed unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. His attorney's most recent February 2013 statement argues as to why an extra-schedular TDIU is warranted. B. Evidence and Analysis Though generated prior to the period on appeal, the Veteran's SSA records show he became disabled in October 1993 due to recurrent major depression and a back disability, status post lumbar laminectomy at L4-5. So the SSA deemed him disabled because of disabilities that are not service connected, meaning unrelated to his military service. Consequently, these other disabilities cannot serve as grounds for granting a TDIU. As concerning the left ankle and foot disability, which is service connected and therefore may serve as grounds for a TDIU, an October 2009 statement from the Veteran's private physician indicated the Veteran could not ambulate even two hours per day and had significant pain and loss of motion. He could not be gainfully employed other than in a seated position. So this commenting doctor seems to accept that sedentary employment is perhaps still a possibility, even if more physically demanding or exertional labor most certainly is not. The Veteran had a VA compensation examination in December 2011. After reviewing the claims file, obtaining a history from the Veteran, and conducting an objective physical examination, the examiner concluded the Veteran's foot problem rendered him unable to perform any kind of gainful physical work. He was unable to walk without a cane, walk more than 50 yards, or drive a vehicle. He would be unable to lift more than 15 pounds. However, his left ankle problem would not prevent sedentary employment. So that VA examiner agreed that, while physically demanding work is no longer an option, sedentary work still is. An additional VA opinion in January 2013 ultimately came to the same conclusion. The VA examinations in December 2011 and January 2013 also determined the Veteran's scars did not impact his ability to work. A TDIU therefore is not warranted, even on the alternative extra-schedular basis mentioned provided by 38 C.F.R. § 4.16(b). As already explained, the Veteran does not meet the schedular criteria for a TDIU under § 4.16(a). And even when considering his possible alternative entitlement under § 4.16(b), there is the private physician's opinion and two VA compensation examiner's opinions ultimately concluding that his service-connected left ankle disability and the associated scarring would not prevent him from still engaging in sedentary employment, although it does preclude him from engaging in physically-demanding employment. There is no competent and credible medical evidence or opinion refuting these three opinions. In her most recent February 2013 argument, the Veteran's attorney cited to 20 C.F.R. § 404.1567(a), which states that sedentary work "involves lifting no more than 10 pounds at a time and occasional lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties." So she posits that even sedentary employment is no longer a viable option for the Veteran, given these constraints. But on the whole the medical and other evidence mentioned does not demonstrate the Veteran has the decreased level of occupational functioning that would warrant concluding sedentary employment is no longer possible. As an example, although the Veteran requires a cane to ambulate, the December 2011 VA examiner specifically noted the Veteran still could walk up to 50 yards and carry up to 15 pounds. Therefore, he is able to meet the standard for a sedentary job as defined in the regulation his attorney cited. For these reasons and bases, the Board finds that the Veteran is not entitled to additional compensation for his left ankle disability, either a higher schedular or extra-schedular rating for this disability or a TDIU either on a schedular or extra-schedular basis. 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim for a rating higher than 40 percent for the post-traumatic arthritis of the left ankle, including SMC prior to January 10, 2013, for loss of use of the left ankle and foot, is denied. The claim for a TDIU on both a schedular and extra-schedular basis also is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs