Citation Nr: 1318915 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-47 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable disability rating for status-post (SP) right Achilles tendon repair. 2. Entitlement to higher initial disability ratings for status-post right Achilles tendon repair scars, one of which is currently rated 10 percent disabling and . REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from January 1978 to January 1982 and from April 1982 to August 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Roanoke, Virginia which granted entitlement to service connection for SP Achilles tendon repair with scars, and assigned a noncompensable evaluation effective from October 23, 2007. Jurisdiction resides with the Regional Office (RO), in Atlanta, Georgia. By rating decision in January 2013 the Atlanta RO established separate ratings for the SP Achilles tendon repair and the SP Achilles tendon repair scars. The RO further provided two separate ratings for the SP Achilles tendon repair scars. It awarded a 10 percent rating for one set of scars (2 painful and unstable), and assigning a noncompensable rating for the other set of scars (1 painful, 1 not painful). These ratings were made effective, October 5, 2012. The noncompensable rating for SP Achilles tendon repair was continued. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal as to the increased ratings claims for SP right Achilles tendon scars are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. Since the effective date of service connection, the Veteran's SP right Achilles tendon repair has been manifested by limitation of dorsiflexion to 15 degrees, swelling, and complaints of pain; marked limitation of motion or ankle deformity. 2. Prior to October 5, 2012, the scars as a residual of right Achilles tendon repair were not shown to be symptomatic or to cover an area approximating 144 square inches. 3. Since October 5, 2012, the Veteran has been shown to have two scars that are tender on examination, but do not involve the head, face or neck; are nonlinear and do not involve an area in approximating 12 square inches. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating have been met for SP right Achilles tendon repair. 38 U.S.C.A. §§ 1155, 5107(b) (2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2012). 2. The criteria for two separate 10 percent ratings for SP right Achilles tendon repair scars have been met since October 5, 2012. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 4.1, 4.7, 4.10, 4.118, DC 7804 (2008 & 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Veteran's appeal arises from disagreement with the initial evaluations following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c) (4). All necessary assistance has been provided to the Veteran. The RO has obtained the Veteran's service treatment records and post-service VA and private medical records. The Veteran was afforded fee based VA examinations in June 2008 and October 2012. After review of these examination reports, the Board finds that they are thorough and adequate upon which to base a decision with regard to the increased ratings claim. The VA examiners personally interviewed and examined the Veteran, including eliciting his medical history, and provided the information necessary to decide the claim. Relevant and important opinions were provided. In his substantive appeal, VA Form 9, the Veteran contended that the June 2008 examination was inadequate in that the examiner did not report the Veteran's complaints of pain on motion and did not acknowledge that the right ankle was larger than the left. The October 2012, examination did include findings that the right ankle was swollen. While the examiner again did not find pain on motion, the examiner reported the Veteran's complaints of pain and included reports of functional impairment. The Board finds the examinations to be adequate as to the scars, and the October 2012 examination to be adequate with regard to the musculoskeletal residuals of the Achilles tendon repair. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and there is no further notice or assistance that would be reasonably likely to assist the Veteran in substantiating the claim. II. Legal Criteria/ Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21(2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). When an appeal arises from the assignment of an initial rating separate, or "staged," ratings may be assigned for separate periods of time based on varying degrees of disability; this practice is. Fenderson v. West, 12 Vet. App. 119 (1999). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet App 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). VA's policy is to treat actually painful, unstable, or malaligned joints as warranting at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation applies to any service-connected joint disability, not just arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). Pain alone without additional associated functional loss cannot serve as the basis for a rating in excess of the minimum compensable level. Mitchell v. Shinseki, 25 Vet. App. at 38 (2011). SP Right Achilles Tendon Repair The Veteran's service-connected SP right Achilles tendon repair currently is evaluated as noncompensable, effective October 23, 2007 under 38 C.F.R. § 4.71a, DC 5271. See 38 C.F.R. § 4.71a, DC 5271. Diagnostic code 5271 provides a 10 percent rating for moderate limitation of ankle motion, and a 20 percent rating for marked limitation of ankle motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). Under Diagnostic Code 5262, a 10 percent evaluation is warranted for malunion of the ankle with slight knee or ankle disability; 20 percent is warranted for moderate disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2012). Diagnostic code 5284 provides a 10 percent rating for moderate foot injury, and a 20 percent rating for moderately severe foot injury. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). Service treatment records show that in December 1991, the Veteran was found to have a ruptured right Achilles tendon. On VA examination in June 2008, the Veteran reported a right Achilles tendon rupture and surgical repair in-service in 1991. The condition was not due to injury or trauma. He did not report weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, or dislocation. He reported localized, aching, sharp, sticking, and cramping pain since 1991 at the right Achilles tendon. It occurred monthly and lasted for 6 hours. On a scale from 1 to 10 the pain was 3. It was relieved with rest. During flare-ups he could function without medication. He was not receiving any treatment for his condition and there was no functional impairment. Physical examination of the right ankle reportedly showed no edema, effusion, weakness, tenderness, redness, heat, subluxation, or guarding of movement. There was no evidence of right ankle deformity. The right ankle had 15 degrees of dorsiflexion and 45 degrees of plantar flexion which was not affected by pain, fatigue, weakness, or lack of endurance. The right ankle joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. There was no evidence of malunion of the os calcis or astralgus on the right. X-rays of the right ankle were normal. The diagnoses were S/P right Achilles tendon repair with scars. On VA examination in October 2012, the Veteran complained of pain and stiffness. He reported that the disability caused difficulty walking during flare-ups. On examination the range of motion (ROM) of the right ankle was to 15 degrees of dorsiflexion and 45 degrees of plantar flexion without evidence of painful motion. After 3 repetitions of motion, the right ankle joint had no additional limitation of ROM. The examiner noted that there was functional loss due to excess fatigability, and swelling. The examiner commented that the enlargement on the right side interfered with right ankle motion. There was no localized pain or tenderness noted; muscle strength was 5/5. There was no evidence of instability; ankylosis; malunion of the os calcis or astralgus on the right. X-rays of the right ankle revealed soft tissue calcification posteriorly adjacent to the Achilles tendon. The examiner noted that the right ankle condition did not impact the Veteran's ability to work. Analysis On both VA examinations the Veteran had an approximately 25 percent loss of dorsiflexion. See 38 C.F.R. § 4.71, Plate II (2013). Although pain was not demonstrated during these examinations, the Veteran reported pain during flare-ups. There is no basis in the record to question the credibility of the Veteran's reports. Regardless of whether this limitation of motion can be described as moderate, VA policy would be to assign the minimal compensable rating. 38 C.F.R. § 4.59. Accordingly, a 10 percent rating is warranted under DC 5271, effective from the date of service connection. The evidence does not show limitation of ankle motion that approximates the marked level. The Veteran has had normal plantar flexion even with consideration of functional factors and has retained most of the normal range of dorsiflexion. Even during flare-ups he remains able to walk, albeit with increased difficulty, and has pain that is in the mild to moderate range. The record also does not show more than a moderate foot injury. Diagnostic studies have been normal, as has muscle strength. The Veteran's ranges of motion, as described above, are largely intact and the disability reportedly does not impact work. This evidence weighs against a finding that the disability approximates the moderately severe level. A separate rating for the foot disability would also not be warranted, because limitation of motion is considered in both ratings, and separate ratings are not warranted unless the manifestations are wholly separate. Esteban v. Brown, 6 Vet. App. 259 (1994); see 38 C.F.R. § 4.14 (2012). Higher ratings are also not warranted for other DCs applicable to the ankle. These would require ankylosis or deformity of the joint. 38 C.F.R. § 4.71a, DC 5270-5274 (2012). The Veteran retains significant ankle motion and X-rays have demonstrated no deformity of the ankle joint. Likewise, the evidence has not reflected that the SP right Achilles tendon repair has caused any malunion of the ankle with slight ankle disability. DC 5262. For the above reasons, an initial rating of 10 percent, but not higher is warranted for the musculoskeletal aspects of the SP right Achilles tendon repair. The evidence is against a rating higher than 10 percent and reasonable doubt does not arise with regard to entitlement to a rating higher than 10 percent. Scars On VA examination in June 2008, the examination revealed 7 level scars at the medial and lateral right Achilles; 3 scars each 1.5 cm; 2 scars each 2.5 cm; and, 2 scars each 1 cm. All the scars were 0.2 cm wide. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, hyperpigmentation, or abnormal texture noted. The right ankle function was not limited. On VA examination in October 2012, the examination identified 4 linear scars located at the right Achilles region, SP surgery. The scars were 5 cm; 2 cm; 2 cm; and 1 cm long. The examiner noted two of the scars were painful. The Veteran reported dull pain and stiffness when flexing. The scars were not tender, disfiguring, ulcerated, or adherent. There was no instability, tissue loss, inflammation, edema, or keloid formation, noted. The examiner noted that the scars were not deep, or non-linear. The scars did not cause any limitation of function, or muscle or nerve damage associated with the scars. The scars were however noted to be painful. During the course of the Veteran's appeal, VA revised the rating criteria for evaluating scars, effective October 23, 2008. See 73 Fed. Reg. 54710 (October 23, 2008). The amendments are effective for claims filed on or after October 23, 2008, unless a claimant requests consideration under the amended criteria. In this case, the RO has adjudicated the Veteran's scar disabilities under both the old and new rating criteria (see August 2008 rating decision and January 2013 supplemental statement of the case). Veteran's claim was initially filed one year prior to the effective date of the amendments. The RO has apparently construed the Veteran's contentions as requesting readjudication under the new criteria. As such, the new criteria are for consideration during the period beginning on October 23, 2008. 38 C.F.R. § 4.118 (2012) (providing that the new criteria cannot be applied prior to October 23, 2008). The old rating criteria provided criteria under DC 7800 for rating scars of the head, face or neck. Prior to October 2008, DC 7801 provided ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) were rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) were rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) were rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq. cm.) were rated 40 percent disabling. Note (1) to DC 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7802 provided ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, were rated 10 percent disabling. Note (1) to DC 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7803 provided a 10 percent rating for superficial unstable scars. Note (1) to DC 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7804provided a 10 percent rating for superficial scars that are painful on examination. Note (1) to DC 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10 percent rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating. 38 C.F.R. § 4.118. DC 7804also directs the rater to see 38 C.F.R. § 4.68 (amputation rule). 38 C.F.R. § 4.118. DC 7805 provided that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118, DC 7805. The new criteria provide: 7800 Burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck: With visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement 80 With visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement 50 With visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement 30 With one characteristic of disfigurement 10 Note (1):The 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at widest part. Surface contour of scar elevated or depressed on palpation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (2):Rate tissue loss of the auricle under DC 6207 (loss of auricle) and anatomical loss of the eye under DC 6061 (anatomical loss of both eyes) or DC 6063 (anatomical loss of one eye), as appropriate. Note (3):Take into consideration unretouched color photographs when evaluating under these criteria. Note (4):Separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply § 4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code. Note (5):The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. 7801 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear: Area or areas of 144 square inches (929 sq. cm.) or greater 40 Area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) 30 Area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) 20 Area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) 10 Note (1):A deep scar is one associated with underlying soft tissue damage. Note (2):If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 7802 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear: Area or areas of 144 square inches (929 sq. cm.) or greater 10 Note (1):A superficial scar is one not associated with underlying soft tissue damage Note (2):If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 7804 Scar(s), unstable or painful: Five or more scars that are unstable or painful 30 Three or four scars that are unstable or painful 20 One or two scars that are unstable or painful 10 Note (1):An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2):If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars Note (3):Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable 7805 Scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804: Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. The June 2008 examination revealed no findings that would warrant a compensable rating for scars under the old or new rating criteria. The Veteran had seven small scars at the site of his Achilles tendon repair that were essentially asymptomatic. Measured separately or together they did not approximate 144 square inches in size. There were no other findings referable to scars until the VA examination in October 2012. At that time the examiner could find only four scars. These were linear and measured from 1 to 5 centimeters in length. Two of the scars were painful. Inasmuch as the Veteran has two scars that were found to be painful on examination, he would be entitled to two separate 10 percent ratings under the old criteria of DC 7804. Under the new criteria two painful scars would warrant only a 10 percent rating under DC 7804. Accordingly, an additional 10 percent rating is granted under the old rating criteria, effective October 5, 2012, when the disability was first demonstrated. The scars do not involve the head face or neck, are linear, and even if nonlinear do not approximate an area of 12 square inches or greater. They therefore would not approximate the criteria for ratings in excess of those granted in this decision. 38 C.F.R. §§ 4.7, 4.21. Although the RO indicated in its January 2013 rating decision that the examiner had identified 3 painful scars, the report of examination indicates only two painful scars. As discussed, the preponderance of the evidence is against ratings higher than those granted in this decision, reasonable doubt has been applied, but does not arise with regard to entitlement to higher initial ratings than have been granted. Extraschedular Rating Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b) (1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology related to his SP right Achilles tendon repair, and scars. There is no indication of symptoms that are not contemplated by the rating schedule. As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is, therefore, adequate. Consequently, an additional referral for extraschedular consideration at this time is not required under 38 C.F.R. § 3.321(b) (1). TDIU The Court has held that TDIU is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). In this case, the Veteran has not reported that he is unemployed and there is no other evidence of unemployability. Hence, the issue of entitlement to TDIU has not been raised. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER An initial 10 percent rating for status-post right Achilles tendon repair, effective October 23, 2007, is granted. Two separate 10 percent ratings for right Achilles tendon repair scars, effective October 5, 2012, are granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs