Citation Nr: 1319004 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 08-32 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from September 1950 to September 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in St. Paul, Minnesota. In July 2010, the Veteran testified before a Veterans Law Judge at a hearing at the RO. A transcript of that hearing is associated with the claims file. Thereafter, in December 2010, the Board remanded these issues to the agency of original jurisdiction (AOJ) for additional development. In May 2012, the case was again remanded to the AOJ to afford the Veteran another Board hearing, at his request, because the prior Veterans Law Judge is no longer employed by the Board. See 38 C.F.R. §§ 20.702, 20.703, 20.704, 20.1304(a) (2012). The Veteran then testified before the undersigned Veterans Law Judge via video conference hearing from the RO in September 2012. A transcript of that hearing is also associated with the claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the aforestated hearings, the respective Veterans Law Judges clarified the issues on appeal and inquired as to the etiology and continuity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the Veterans Law Judges questions regarding his claims. The Board, therefore, concludes that it has fulfilled its duty under Bryant. In November 2012 the Board remanded the case for additional development. It is now returned to the Board. As will be discussed further herein, the AOJ has substantially complied with the prior remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 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. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A right ankle disability was not manifested during service, was not diagnosed within the first post service year, and is not otherwise related to active service or to a service-connected disability. 2. A left ankle disability was not manifested during service, was not diagnosed within the first post service year, and is not otherwise related to active service or to a service-connected disability. 3. Prior to April 28, 2008, service connection was in effect for chondrocalcinosis and degenerative changes of the right knee, rated as 30 percent disabling; chondrocalcinosis and degenerative changes of the left knee, rated as 10 percent disabling; residuals of a left foot laceration, rated as 20 percent disabling; and left foot residual scar, rated as 10 percent disabling. The combined disability rating was 60 percent. 4. From April 28, 2008, to February 28, 2010, the Veteran was rated at 100 percent under 38 C.F.R. § 4.30, based upon convalescence for various service-connected disabilities. 5. From March 1, 2010, service connection has been established for chondrocalcinosis and degenerative changes of the right knee, rated as 30 percent disabling; chondrocalcinosis and degenerative changes of the left knee, rated as 30 percent disabling; residuals of a left foot laceration, rated as 20 percent disabling; and left foot residual scar, rated as 10 percent disabling. The combined disability rating is 70 percent. 6. Over the course of the appeal, the Veteran's service-connected disabilities have not been shown to be of such severity as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a right ankle disability, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for the establishment of service connection for a left ankle disability, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.1-4.14, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in February 2008, April 2008, July 2008, December 2010, February 2011, November 2012, and January 2013 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Concerning the claim for a TDIU, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. The Board further observes that this case was most recently remanded in November 2012 in order to obtain possibly outstanding private medical treatment records and to obtain an addendum to a February 2011 VA examination report. Thereafter, the Veteran notified the AOJ that additional private medical treatment records were not available. The requested VA medical opinion was provided in March 2013. Therefore, the Board finds that the AOJ has substantially complied with the prior remand directives such that no further action is necessary in this regard. See D'Aries, supra. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service Connection for Right and Left Ankle Disabilities Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, to include arthritis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. During his July 2010 and September 2012 hearings, the Veteran asserted that he has current right and left ankle disabilities that have been chronic in nature ever since sustaining a left foot laceration injury during his period of active service. He also indicated that his current ankle symptoms are secondary to an altered gait caused by his service-connected right and left knee chondrocalcinosis (which had been found to be secondary to the service-connected residuals of a left foot laceration). The Veteran also testified that following service, he was involved in a December 2003 snow mobile accident wherein he sustained bruising to the left ankle, but he noted that his ankle symptoms had existed prior to that time. A review of the Veteran's service treatment records reveals that in July 1951, he sustained a laceration to the left foot while swimming in a lake. He sustained a partial tear of the peroneus longus, a complete tear of the peroneus brevis, and a small laceration of the Achilles tendon. He underwent surgery to repair the injured tendons of the left foot and ankle regions. Service treatment records dated in February 1952 show treatment for a painful scar of the left foot associated with the foregoing injury and surgical repair. There are no other service treatment records which identify any treatment for or diagnosis of a right or left ankle disorder. The Board notes that service connection has already been established for residuals of a left foot laceration, a left foot residual scar, and right and left knee chondrocalcinosis. Following service, a VA examination report dated in January 1953 shows that the Veteran reported that he experienced ongoing left foot pain. However, there is no mention of any symptoms associated with a right or left ankle disorder. A VA outpatient treatment record dated in December 2003 shows that the Veteran reported a painful left ankle following an incident in which the snowmobile on which he was riding overturned and may have run over his left foot. He had a large bruise on the left ankle with some swelling, and was difficult to walk on. There was mild swelling around the lateral malleoulus; tenderness directly above the ankle on the fibula; no tenderness to anterior, lateral, or posterior talofibular tendons; and pulse was intact. X-rays revealed soft tissue swelling; no acute fractures; evidence of prior surgery; and old healed fracture of the distal fibula well above the level of the ankle joint. The assessment was grade I ankle sprain. A VA joint examination report dated in July 2007 does not provide any findings relative to the right or left ankles. A VA examination report dated in February 2009 shows that the VA examiner opined that the Veteran's left ankle disorder was not the result of his service-connected left foot laceration residuals and attributed his current disorder to the post-service snowmobile accident. The VA examiner also opined that the Veteran's right ankle disorder was not caused by, or the result of, his service-connected left foot laceration residuals as it was not consistent with a stress injury. In an addendum dated in February 2011, the same VA examiner explained that with regard to the left lower extremity, the Veteran had at least two fractures, one in 2003, and another prior fibular fracture possibly related to a severe sprain. The ankle was tender and demonstrated limited motion on examination in 2003. He was noted to have had an abnormal gait for many years due to the left foot and tendon injury. However, there was no evidence of degenerative changes on X-ray in 2003, and the examiner noted no altered gait since 2003. The Veteran had only mild degenerative changes following the additional ankle injury. The examiner concluded that the degenerative changes were related to the intervening interceding incident and not caused by, the result of, or aggravated by the prior condition. The VA examiner further noted that the Veteran had bilateral degenerative changes of the knees and was status post arthroplasty, with the left knee more painful than the right. The examiner stated that if it were to cause distal degenerative change, it would more likely cause problems with the right and left ankles. There was no evidence that this was part of the natural progression of the disability. The diagnosis was left ankle, status post fracture with degenerative joint disease. The examiner concluded that the left ankle disorder was less likely than not caused by, the result of, or aggravated by active service, the left foot laceration with tendon injury and chronic pain, or the bilateral knee degenerative joint disease status post arthroplasty. The VA examiner also addressed the asserted right ankle disability noting that there was no documented ankle injury. The Veteran was said to have asymptomatic, mild degenerative change of the right ankle with irregularity of the syndesmosis suggesting prior injury. The examiner explained that syndesmotic injury was not consistent with antalgic gait, but was the result of forceful traumatic injury. The examiner added that the right ankle disorder was unlikely related to the asymmetric gait, or significantly aggravated by the asymmetric gait. The examiner concluded that the right ankle mild degenerative joint disease was less likely than not caused by, the result of, or aggravated by active service, left foot laceration and tendon injury with residual pain, or bilateral knee degenerative joint disease status post arthroplasty. A VA examination report dated in March 2013 shows that the VA examiner indicated that a review of the Veteran's claims file had been conducted in conjunction with the examination. The examiner stated that the Veteran's left ankle, status post fracture with degenerative joint disease, was less likely than not caused by, the result of, or aggravated by active service or the left foot laceration with tendon injury and chronic pain, or the bilateral knee degenerative joint disease status post arthroplasty. The examiner explained that the Veteran had no history of left ankle problem during active service, and that the left ankle/lower leg had had at least two fractures, one in 2003 and a prior fibular fracture possibly related to a severe ankle sprain which he had not documented. The examiner reported that the Veteran currently had only mild degenerative change, and explained that in 2003, after having had an abnormal gait for many years (more than 50) relative to the left foot and tendon injury, there was no evidence of degenerative change on X-ray. There was no alteration in the foot/tendon injury since that time, however, he had since developed degenerative change in the left ankle. The examiner commented that with no degenerative change of the joint over 50 years, and degenerative change developing following an additional ankle injury, it was most likely that the degenerative change was related to the intervening interceding incident and not caused by, the result of, or aggravated by the prior condition. The VA examiner also explained that, relative to the knee condition and abnormal gait, the Veteran had bilateral degenerative change of the knees and was status post arthroplasty with the left knee being more painful than the right. The examiner stated that there was no evidence that potential altered gait related to the Veteran's more painful left knee would cause or aggravate progression of a left ankle condition. The examiner opined that the left ankle status post fracture with degenerative joint disease was less likely than not caused by, the result of, or aggravated by the bilateral knee condition or altered gait related to it. The VA examiner further opined that the right ankle degenerative joint disease was less likely as not caused by, the result of, or aggravated by the service-connected bilateral knee disabilities including the effects of altered gait. The examiner commented that the right ankle degenerative joint disease was mild and could be explained solely on the basis of age and history or prior trauma as noted in relationship to the syndesmotic irregularity which was suggestive of prior traumatic injury such as a severe sprain. The examiner stated that there was no evidence that his abnormal gait had altered the natural progression of the condition. In May 2013, the Veteran submitted various orthopedic treatises describing the anatomy of the peroneous longus, the peroneous brevis, and the Achilles tendons. The Board notes that in April 2013, the Veteran had submitted a waiver of consideration of future evidence by the AOJ. As such, the Board may review the treatises in the first instance in adjudicating the Veteran's claims. Having carefully considered the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for right and left ankle disabilities. As noted above, service connection is already in effect for residuals of a left foot laceration, a left foot residual scar, and right and left knee chondrocalcinosis. Notwithstanding the in-service left foot injury, there is no medical evidence in the service treatment records that the Veteran sustained a right or left ankle injury or disease during active service or within one year following separation from service. In fact, the September 1952 VA examination report makes no mention of a right or left ankle disability. In this regard, service treatment records are highly probative as to the events occurring in service, as the records are generated with the specific purpose of ascertaining the individual's physical condition and are akin to statements of diagnosis and treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). During his two hearings before the Board and in various correspondence, the Veteran has asserted that his current right and left ankle disorders have both continued since service, and are also secondary to the service-connected disabilities. However, the Board finds that the overall evidence does not support the Veteran's contentions and they are not credible. He filed a claim for compensation soon after service and made no mention of ankle disability. If ankle disability bothered him continuously since service, it would seem likely that he would mention this when filing his initial compensation claim. The first mention of ankle disability in the record followed post service trauma resulting in an ankle sprain. The various VA examination reports set forth above all conclude that the Veteran's current right and left ankle disabilities were not caused by, the result of, or aggravated by the Veteran's active service, or by a service-connected disability. These opinions are highly probative as they were definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. The Veteran has not provided any competent medical evidence to rebut the opinions against the claims or otherwise diminish their probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board has also considered the orthopedic treatise evidence submitted by the Veteran in support of his claims. However, it has been established that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Here, though, the Board does not assign this evidence much weight as it does not establish a correlation between the Veteran's current right and left ankle disabilities and his period of active service, or a service-connected disability, with any degree of medical certainty. As such, this evidence is of limited probative value. The Board has considered the Veteran's testimony, as well as the lay evidence of record, in support of his claims. However, it would require medical or scientific expertise to say that claimed disabilities were related to a particular disability, to specifically include the service-connected residuals of the left foot laceration. This is not a matter that is subject to lay observation. There is no indication that the Veteran possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. 38 C.F.R. § 3.159(a); see Jandreau, 492 F.3d at 1377 (holding that lay evidence is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007). Given that the competent medical evidence against the claim, for the Board to conclude that the Veteran's right and left ankle disabilities are manifested as a result of service or a service-connected disability would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2012); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Overall, the evidence is not in relative equipoise, as the most probative evidence of record addressing the etiology and onset of the Veteran's asserted symptoms weighs against service incurrence or a relationship to a service-connected disability. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert, 1 Vet. App. at 49; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The benefits sought on appeal are, therefore, denied. TDIU Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (2012). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a); 4.19 (2012). Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19 (2012). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term 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." Also, in Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (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 . . ." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court, citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), noted the following standard: 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 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 was given on account of the same. See 38 C.F.R. § 4.18. To receive a TDIU, the Veteran's service-connected disabilities alone must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In this case, the Veteran filed his claim for a TDIU in January 2008. Service connection is currently in effect for chondrocalcinosis and degenerative changes of the right knee, rated as 30 percent disabling; chondrocalcinosis and degenerative changes of the left knee, rated as 30 percent disabling; residuals of a left foot laceration, rated as 20 percent disabling; and left foot residual scar, rated as 10 percent disabling. The combined disability rating is 70 percent. While the Veteran does not have at least one disability ratable at 40 percent or more, as his disabilities arise from a common etiology (the left foot laceration), and as they combine to 70 percent, he currently meets the percentage criteria set forth in 38 C.F.R. § 4.16(a)(2). The remaining question before the Board, therefore, is whether the Veteran is unemployable by reason of his service-connected disabilities alone, taking into consideration his educational and occupational background, such that a TDIU rating may be assigned. Lay statements from the club manager at the American Legion dated in July 2007 and February 2008 show that the Veteran was said to have been the bookkeeper for the local chapter. He was said to have progressively increased problems with his left knee, affecting his ability to walk, especially when going up and down stairs. It was also indicated that he could not sit in one position for any length of time before having to get up and walk around. He was also said to have gone from an avid golfer to a part-time golfer as a result of his increased symptoms. Lay statements from the Veteran's daughter dated in July 2007 and February 2008 show that the Veteran worked as a bookkeeper for the American Legion. It was indicated that just walking to and from the front area of the American Legion would cause great pain. He could not sit nor stand for any lengths of time, and could not do things he enjoyed like golf, ride a bike, or hunt. He was also prevented from doing housework, ascending or descending stairs, or mowing the lawn. Medications taken for pain were said to be ineffective. Lay statements from the Veteran's spouse dated in July 2007 and February 2008 shows that it was indicated that the Veteran's symptoms had become so severe that he could no longer go on walks, go to church, kneel down to pick up things, golf, ride his cycle, dance, hunt, or mow the lawn. Going up or down stairs would be painful, as was sleeping. It was also noted that he had to change jobs often to find one that did not require any standing or walking. The Veteran was said to have had to give up his job at the American Legion that he enjoyed for many years due to his pain. In a letter dated in July 2007, the Veteran indicated that he was hired as a bookkeeper at the American Legion because he could do most of his work sitting down. He reiterated that he could no longer golf, ride his bike, hunt, or mow the lawn. He could not sit or stand for any length of time. He would have difficulty sleeping because of his pain. He also noted that it was very difficult to get any pain relief from medications. A Request for Employment Information (VA Form 21-4192) received from the American Legion in February 2008 shows that the Veteran's start date was said to be September 1990 and that he retired in December 2007. He was said to have worked five hours per day for 30 hours per week. He had lost no time during the preceding 12 months of employment due to his disabilities. A VA general medical examination report dated in March 2008 shows that the Veteran reported that he would volunteer daily at the American Legion, where he was in charge of medical equipment. He had been working as a bookkeeper for the American Legion until January 2008. He added that he had also done maintenance work going up and down ladders, but that he was no longer able to do this due to his knees. Prior to that he had worked full time in liquor sales for eight years, in insurance sales for eight years, and in farming and trucking. His education history was the 10th grade. He would use a computer and carried a cell phone. He reported that he lived in a house and was independent in his activities of daily living, driving, and chores. He had a walker that he had been using for assistance. Following examination of the Veteran, the examiner indicated that regarding the Veteran's 10th grade education and vocational training in sales, insurance, and bookkeeping, and his duties at the American Legion involving maintenance, it did not seem feasible given his bilateral degenerative joint disease of his right and left knee, along with the left foot laceration. A VA general medical examination report dated in February 2009 shows that the Veteran's service-connected disabilities were said to result in functional impairment manifested by pain, limited walking, limited standing, limited lift - avoidance of ladders, limited stairs, and required a change in position as needed. The examiner indicated that the Veteran was able to work in his chosen profession, and was able to perform substantial gainful employment. A VA examination report dated in February 2010 shows that the Veteran was said to be retired after a work history of insurance sales for 30 years and liquor sales for 10 years. His service-connected disabilities were said to result in limitation of kneeling, squatting, and prolonged walking, standing, or sitting for more than 15 minutes at a time. He was said to be able to work in his chosen profession and to perform substantial gainful employment. During his July 2010 hearing, the Veteran indicated that he stopped working at his original job in liquor sales in 1991, and then began working 30 hours per week as a bookkeeper for the American Legion. He described that prolonged sitting would aggravate his knee disabilities, and that he would have to get up approximately every 15 minutes. In correspondence received in December 2010, the Veteran reiterated that he was only volunteering with the American Legion, and that he could no longer work because of his service-connected disabilities. A VA examination report dated in February 2011 shows that the Veteran's service-connected disabilities were said to result in limited standing, walking, and lifting of 40 pounds, intermittently. He was also limited in that he had to avoid ladders and stairs, and change position as needed. He was said to be able to work in his chosen profession, with the limitation of no climbing ladders. He was said to be able to perform substantial gainful employment. He would not be able to work in heavy physical labor or moderate labor. It would be expected that he would be able to work in a sedentary or possibly light physical labor position. He reported splitting wood for up to two hours at a time, and currently volunteered at the American Legion taking care of medical equipment. He reported being able to ride his motorcycle, snowmobile, and golf. The examiner indicated that these activities would be consistent with the ability to work at a sedentary or light physical labor. A VA examination report dated in December 2011 shows that the Veteran provided an employment history consistent with that as set forth above. The VA examiner opined that the Veteran was physically able with his service-connected disabilities to handle the sedentary work he was handling bookkeeper work for the American Legion until 2007. He is physical condition limited his capability to do certain physical jobs that would involve repetitive lifting over 20 to 30 pounds or any repetitive squatting, bending, walking, or standing which would be too hard and painful for him. The examiner added that the Veteran was being tested for some possible (non-service-connected) cognitive deficit issues which may play a role in employment. During his September 2012 hearing, the Veteran indicated that he was last employed as a bookkeeper in December 2007, and that at that point he was working part time for the American Legion. He indicated that his legs were painful, and that he would not sit for any length of time. The Veteran added that he could only golf with the use of a golf cart which reduced the amount of walking that he had to do, and that riding his motorcycle was possible because he could position his legs straight out while riding. He noted that he could ride 25 miles at a time, and approximately 100 miles in a given weekend. The examiner explained that undertaking the foregoing activities should not be an indicator for his ability to engage in gainful employment. After a review of the record, the Board finds that the competent medical evidence of record does not demonstrate that functional limitations imposed by the Veteran's service-connected chondrocalcinosis and degenerative changes of the right and left knees, residuals of a left foot laceration, and left foot residual scar preclude his performance of substantially gainful employment. The evidence of record shows that the Veteran was capable of engaging in substantially gainful employment for many years before his retirement. Moreover, each of the aforestated VA examination reports help establish that the Veteran's service-connected disabilities have not precluded his ability to engage in sedentary and light physical activity in engaging in gainful employment. The Board finds the assessments of the VA medical professionals to be probative as they were definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not provided any competent medical evidence to contradict the opinions against the claim or otherwise diminish their probative weight. See Wray, 7 Vet. App. at 492-93. While the Board understands the Veteran's concern about securing gainful employment at his age, as indicated above, consideration may not be given to age or impairment from disabilities that are not service connected. See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19 (2012). Moreover, there is no indication by competent authority that the Veteran is unable to maintain substantially gainful employment due to the severity of his service-connected disabilities alone. The Board acknowledges that the Veteran has difficulty with his service-connected disabilities, but such difficulties are accounted for in the current 70 percent combined disability rating. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). While his service-connected disabilities may cause some economic inadaptability, this also is taken into account in the assigned disability ratings. In this case, there is no showing of total individual unemployability based solely on the service-connected disabilities. The Board has considered the lay statements of record in support of the Veteran's claim as to the extent of his current symptoms. They are certainly competent to report that his symptoms are disabling. See Layno, 6 Vet. App. at 470. However, in evaluating a claim for a TDIU, VA must consider the factors as enumerated in the regulation discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. The medical evidence of record reflects that the Veteran can engage in sedentary gainful employment, and the level of severity of the Veteran's disabilities is adequately contemplated by the applicable diagnostic criteria. The criteria provide for higher ratings, but the ratings assigned are appropriate and have not been challenged by the Veteran. Based upon the foregoing, the Board concludes that the preponderance of the evidence is against the claim of entitlement to a TDIU. The evidence does not demonstrate that the Veteran's service-connected disabilities alone, when considered in association with his educational attainment and occupational background, render him unable to secure or follow a substantially gainful occupation. Although he has not been employed for many years, the evidence weighs against finding that his service-connected disabilities have combined to cause unemployability. ORDER Entitlement to service connection for a right ankle disability, to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities, is denied. Entitlement to a TDIU is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs