Citation Nr: 1320347 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 06-26 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increase in a 10 percent rating for residuals of a fracture of the tip of the right fibula, to include entitlement to an extraschedular rating. 2. Entitlement to an increase in a 30 percent rating for residuals of a right spontaneous pneumothorax, to include entitlement to an extraschedular rating. 3. Entitlement to a total disability rating based on individual unemployability (TDIU rating), to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active service from April 1950 to August 1953 and from January 1955 to October 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 RO rating decision that increased the rating for the Veteran's residuals of a fracture of the tip of the right fibula from noncompensable to 10 percent, effective December 17, 2003, and increased the rating for his residuals of a right spontaneous pneumothorax from zero to 30 percent, effective December 17, 2003. In December 2008, the Board remanded the issues of entitlement to an increase in a 10 percent rating for residuals of a fracture of the tip of the right fibula and entitlement to an increase in a 30 percent rating for residuals of a right spontaneous pneumothorax, for further development. In a September 2009 decision, the Board denied the Veteran's claims for entitlement to an increase in a 10 percent rating for residuals of a fracture of the tip of the right fibula and entitlement to an increase in a 30 percent rating for residuals of a right spontaneous pneumothorax. The Veteran then appealed the Board's September 2009 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2011 Memorandum Decision, the Court vacated and remanded the Board's September 2009 decision. In September 2011, the Board determined that the issue of entitlement to a TDIU rating was raised during the Veteran's previously appealed increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the issues of entitlement to an increase in a 10 percent rating for residuals of a fracture of the tip of the right fibula and entitlement to an increase in a 30 percent rating for residuals of a right spontaneous pneumothorax, as well as the issue of entitlement to a TDIU rating, for further development. In January 2012, the Board remanded the issues again for compliance with its prior remand instructions. The Board notes that the issue of entitlement to a right arm disability, to include numbness in the right arm, has been raised by the record. The claim was initially denied by the RO in a May 2005 rating decision, and then by the Board in a December 2008 decision. It appears that the Veteran subsequently attempted to reopen his claim for service connection for a right arm disability in a May 2011 statement, and was informed in the introduction of a January 2012 RO rating decision that service connection for right arm numbness was currently on appeal. However, a review of the record does not show that the issue was on appeal, and no further action has been taken on it. The Board further notes that in undated statements of record and a May 2012 statement, the Veteran alleges entitlement to service connection for a bilateral knee disability secondary to his right ankle disability, headaches, and disabilities affecting his right shoulder, neck, upper back, rib cage, and leg muscles. The issues are referred to the RO for appropriate action. For reasons explained below, the issues entitlement to an increased rating for residuals of a right spontaneous pneumothorax and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. Please note 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. Resolving all reasonable doubt in his favor, throughout the appeal, the Veteran's right ankle disorder more nearly approximates marked limitation of motion with subjective complaints of pain, weakness, instability and fatigue. 2. Throughout the appeal, the Veteran's right ankle disorder has not presented an exceptional or unusual disability picture with such related factors as a marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW The criteria for a disability rating of 20 percent, but not higher, for residuals of a fracture of the tip of the right fibula have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. The Board finds that VA has satisfied its duty to notify. Specifically, by way of letters dated in January 2004, December 2004, August 2006, November 2006, January 2009, September 2010, and May 2012, the Veteran was advised of the evidence needed to substantiate his increased rating claim and apprised of what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing. While the August 2006, November 2006, January 2009, September 2010, and May 2012 letters were issued after the initial May 2005 rating decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court has clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, the Veteran's claim was last readjudicated in an April 2013 statement of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained and considered. He has not identified any additional outstanding records that VA should seek to obtain on his behalf. The Veteran also afforded several VA compensation examinations during the appeal period to assess the severity of his service-connected disability. Indeed, VA afforded the Veteran recent VA examinations in March 2009 and February 2013. The Board finds that the examinations are adequate for purposes of evaluating the Veteran's service-connected residuals of fracture of the tip of the right fibula, as they included an interview with the Veteran, review of the claims file, and full physical examinations. Moreover, in July 2012, the Veteran's claim for an increased rating for residuals of a fracture of the tip of the right fibula was referred to the VA Director of Compensation Service for consideration of an extraschedular rating. Accordingly, the Board is thus satisfied the RO has substantially complied with the December 2008 and January 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). The Veteran has not alleged, nor does the record show, that his service-connected residuals of fracture of the tip of the right fibula has worsened in severity since the most recent examination in 2013. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Increased Rating for Residuals of a Fracture of the Right Ankle The Veteran fractured his right ankle while on active duty. As a result, the RO granted service connection and initially assigned a noncompensable (zero percent) rating for residuals of a fracture of the right ankle. In December 2003, the Veteran filed a claim for increased compensation benefits. The RO granted a higher rating of 10 percent for this disability, effective from the date of claim in December 2003. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that, unless the symptoms and/or degree of impairment due to a Veteran's service-connected disability can be distinguished from any other diagnosed disorder, VA must consider all symptoms in the adjudication of the claim. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Throughout the appeal period, the Veteran's right ankle disability has been assigned a 10 percent rating under DC 5271, for limitation of motion of the ankle. This code provides a 10 percent rating for moderate limitation and a 20 percent rating for marked limitation of motion of the ankle. A disability rating greater than 20 percent is not provided under this diagnostic code. See 38 C.F.R. § 4.71a, DC 5271. Unfortunately, words such as "moderate" and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. However, the Schedule for Rating Disabilities also provides some guidance by defining full range of motion of the ankle as zero to 20 degrees of dorsiflexion and zero to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71a, Plate II (2012). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran asserts entitlement to a higher rating for his residuals of a fracture of the right tibula. In support, he asserts that due to pain an d corresponding functional impairment, a higher evaluation is warranted. He also argues that the disability is productive of instability that results in frequent fall, which likewise reflects a disability picture more disabling than reflected by the current 10 percent rating. VA examinations performed in November 2004 and March 2009 noted that his right ankle had full motion, with 20 degrees of dorsiflexion and 45 degrees of plantar flexion. During a June 2012 VA examination, the examiner noted that, while the Veteran wore a soft ankle brace to prevent his ankle from turning, there was no pain or laxity when stressing the talofibular ligament. Nor was there edema, and x-rays were totally normal. In determining the Veteran's overall disability picture, the Board acknowledges his report of suffering from right ankle instability. In addition, the Board is mindful of the Court's statement in its February 2011 decision that the record "was replete with both lay evidence and medical reports indicating that not only does the appellant experience limited ability to stand but he also frequently falls as a result of the instability of the ankle." Moreover, most recently, a VA examination in February 2013 showed additional limitation of right ankle motion, with dorsiflexion to 10 degrees and plantar flexion to 25 degrees. Further, at that examination, there were subjective complaints of pain, weakness, and fatigability on repetitive movement, and objective evidence of swelling. Resolving all doubt in favor of the Veteran, given the limited motion, the Veteran's functional complaints, based on both limited motion and instability, the Board finds that the disability picture for the Veteran's right ankle disability has most closely approximately a 20 percent rating under DC 5271 throughout the course of the appeal. The Board also finds that a disability rating higher than 20 percent is not warranted at any time based on functional loss due to pain, weakness, fatigability, instability or incoordination of the right ankle. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-08 (1995). In this regard, DC 5271 does not provide for a schedular rating in excess of 20 percent. Even so, the Veteran's right ankle has generally exhibited normal motion throughout most of the appeal period, and it appears that the 10 percent rating previously assigned by the RO was based on the Veteran's complaints of functional impairment due to pain. In addition, the November 2004, March 2009, October 2010, and February 2013 VA examination reports note that there was no additional loss of motion after repetitive use. Thus, even acknowledging the Veteran subjective complaints of pain, fatigue, and weakness, those symptoms have not been shown to result in additional limitation. Further, although the range of motion findings alone do not support the assignment of a 20 rating, because the Board is likewise taking into consideration his report of right ankle instability, the Board finds that the Veteran's functional complaints are adequately addressed by the 20 percent rating, and the evidence does not support assignment of a higher disability rating at any time during the appeal period pursuant to 38 C.F.R. §§ 4.40, 4.45, and 4.59. The Board also finds that no other potentially applicable diagnostic code affords the Veteran a disability rating higher than 20 percent for his right ankle disability. In this regard, there is no evidence that his right ankle is manifested by ankylosis (DC 5270 and 5272) or malunion (DC 5273). See 38 C.F.R. § 4.71a, DCs 5270, 5272 and 5273 (2012). The VA examination reports indicate that there was no malunion of the right ankle, thereby precluding consideration of DC 5723, which, parenthetically, the Board notes provides for a maximum 20 percent rating. Moreover, ankylosis is defined as the immobility and consolidation of a joint due to disease, injury or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Since the Veteran's right ankle has demonstrated motion during each VA examination, it clearly is not ankylosed. For these reasons and bases, the Board finds that the preponderance of the evidence is against a higher schedular disability rating for the Veteran's residuals of a fracture of the tip of the right fibula. In sum, the Board finds that, resolving all doubt in the Veteran's favor, the findings most nearly approximate right ankle disability consistent with marked limitation of motion sufficient to warrant a higher 20 percent disability rating. However, as the preponderance of the evidence is against a rating in excess of 20 percent at any time during the period on appeal, the doctrine of reasonable doubt is not for application, and a rating in excess of 20 percent is denied. See 38 U.S.C.A. § 5107(b). III. Consideration of an Extraschedular Evaluation In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In July 2012, the Veteran's file was referred to VA's Director of Compensation Service. However, in November 2012, based on a review of the file, including the medical evidence and the Veteran's contentions, VA's Director of Compensation Service concluded that the Veteran's right ankle disability picture did not warrant the assignment of an extraschedular rating. The Board agrees. The rating criteria in Diagnostic Code 5271 reasonably describe the Veteran's symptoms due to his service-connected right ankle disability (limitation of motion). Additionally, in awarding a 20 percent rating, the Board has taken into account the Veteran's various functional complaints, to include pain, giving way, and fatigue, which he asserts impair his ability to stand or walk for long periods of time. However, to the extent that the Veteran has alleged, and submitted lay statements in support of entitlement to an extraschedular rating due to functional loss, the Board is not persuaded. Initially, the Board acknowledges that the Veteran experiences pain and swelling due to his right ankle disability. However the Board finds that the Veteran's full account of symptoms, subjective complaints, and limitations related specifically to the right ankle is likely exaggerated and lacks credibility. For instance, the Veteran has alleged during VA examinations and in written statements that, due to severe pain and giving way in his right ankle, he was unable to continue his work as a barber. However, the Board finds that assertion to be inconsistent with earlier reports of the Veteran. In this regard, upon reporting for initial private podiatric treatment in April 2004, the Veteran simply reported that he was retired. That report is afforded significant probative value as it was made in furtherance of treatment, and not in conjunction with a claim for benefits. Further, the Veteran reiterated during a subsequent November 2004 VA examination that he had retired approximately eight years prior (around 1996) without any mention of any right ankle disability. Thereafter, in contrast to his earlier reports, the Veteran reported during a March 2009 VA examination that he did not retire but instead, had to cease working in 1985 as a barber and was unemployed due to his right ankle disability. Parenthetically, the Veteran has also indicated on April 2011 and May 2012 TDIU applications that he last worked full time in the 1960s, and a record of earnings submitted by the Veteran suggests that he was earning income as recently as 2000. Nevertheless, he also reported to the March 2009 VA examiner that his right ankle had remained in pain since his in-service 1960 injury. However, contradicting that assertion is the Veteran's own testimony during a February 1966 RO hearing that his "[right] leg don't bother me one step." The Veteran then clarified during the hearing that he was responding to a question he believed to concern his right ankle. Given the inconsistent statements generally, including statements regarding the course and nature of the Veteran's right ankle symptoms, the Board finds that the Veteran's subjective reports lack credibility. What is more, while the Veteran alleges that his right ankle symptoms are so severe as to, alone, prevent him from working, and further, cause him to fall frequently, the Board finds it significant that his ongoing VA and private treatment records dating from at least as early as December 1999, with the exception of a January 2006 private treatment note, are almost negative for complaints related specifically to right ankle, though they do show complaints related to various other conditions related to the right upper extremity, back, knees, feet and toenails, and lower extremities. Moreover, those treatment records do not document ongoing complaints of frequent falls related to the right ankle disability. The Board finds it likely that if the Veteran's right ankle symptoms were so severe as to cause marked interference with employment, and such frequent falls as alleged, he would have sought more frequent treatment for the disability, particularly as he sought treatment for other disabilities. The Board is cognizant that the Veteran, his wife, and friends have provided lay statements attesting to the Veteran's right ankle problems and the impact the disability has on his ability to walk and/or stand, including allegations of frequent falls. However, the Board observes that the Veteran has been treated throughout the appeal period for various other lower extremities disabilities, most significantly, neuropathy of the lower extremities with loss of protective sensation, but also plantar fasciitis, Achilles tendonitis of the left foot, painful and ingrown toenails, vein harvesting, and he has even undergone bilateral knee replacement. Furthermore, a February 2009 statement from a friend notes that the Veteran frequently complains about his "feet and legs," demonstrating complaints related to his bilateral lower extremities generally, and not specifically the right ankle. Statements from the Veteran's wife, indicating knee-related complaints, also support that the Veteran has significant disabilities relating to the bilateral lower extremities. Nevertheless, given the significant number of nonservice-connected disabilities affecting the lower extremities during the period on appeal, the Board finds the attribution of the Veteran's walking and standing limitations by himself and other individuals specifically to his right ankle disability to lack probative value, as there is no indication in the record that the Veteran or his family and friends have the medical training or expertise to render such an opinion. Moreover, while the Veteran alleges that his right ankle is so severe as to cause marked interference with employment, the Board notes that the Veteran claims he has not worked during the period on appeal. Parenthetically, the Board finds that claim to be questionable, as the Veteran's wife stated in a June 2012 statement that the Veteran "is a barber," and "since 1969 has been working in Florida." She then provided the Veteran's Florida barber's license number, which records show to be currently active. Nevertheless, assuming without concluding that the Veteran's statement that he has not worked during the appeal period is true, his right ankle disability could not have caused marked interference with employment during the appeal period. Moreover, to the extent that the Veteran's asserts his doctor has indicated that he cannot work due solely to his service-connected disabilities, the physician's October 2010 statement notes that the Veteran cannot work due numerous nonservice-connected disabilities, to include "a lot of arthritis," joint replacements, status post coronary artery bypass graft, and shortness of breath on exertion. Additionally, there is no evidence that the Veteran's right ankle disability has resulted in frequent or, indeed, any hospitalizations during the period on appeal. For these reasons, the Board concludes that the preponderance of the evidence is against the Veteran's claim for an extraschedular rating for the service-connected right ankle disability. As such, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). In sum, the Board finds that a 20 percent rating, and no higher, is warranted throughout the appeal, and that the 20 percent rating represents the maximum disability evaluation warranted for the disability during this extended appeal. ORDER Subject to the law and regulations governing payment of monetary benefits, a disability rating of 20 percent, but not higher, for residuals of a fracture of the tip of the right fibula is granted. REMAND The record suggests the nature and extent of the Veteran's spontaneous pneumothorax residuals have changed since the most recent VA examination that included pulmonary function testing, and he should be provided a contemporaneous VA examination on remand. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); see also VAOPGCPREC 11-95 (April 7, 1995). In this regard, the Veteran has submitted evidence dated in September 2011, October 2011, and October 2012 showing that he has been prescribed oxygen for shortness of breath and chronic obstructive pulmonary disease (COPD). While he was afforded a May 2012 VA examination that addressed his residuals of spontaneous pneumothorax, that examiner used pulmonary function test results from June 2011, which predates the first evidence showing a prescription for oxygen. For this reason, the issue must be remanded for further development. The Board also finds that, on remand, the VA examiner should, to the extent possible, delineate respiratory symptoms attributable to the Veteran's spontaneous pneumothorax and respiratory symptoms attributable to nonservice-connected disabilities. The examiner should specifically opine as to whether the Veteran's spontaneous pneumothorax requires oxygen, or if oxygen is required for a nonservice-connected disabilities. In this regard, the Board notes that the Veteran's shortness of breath has been attributed by VA examiners and a Mayo Clinic provider to factors other than the spontaneous pneumothorax, to include his age, obesity, deconditioning, smoking history, and as a residual of a myocardial infarction. What is more, a June 2012 VA examiner opined that it is more likely than not that the Veteran has no residuals from his spontaneous pneumothorax. Next, the Board finds that the Veteran's claim for TDIU is inextricably intertwined with the claim for a rating higher than 30 percent for residuals of spontaneous pneumothorax, because adjudication of that claim may affect the merits and outcome of the claim for TDIU, to include entitlement to a TDIU on a schedular basis. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or who were contemporaneously informed of the nature, extent and manifestations of his spontaneous pneumothorax residuals and any impact of his service-connected disabilities on his ability to work. Provide an appropriate amount of time to respond to this notification. 2. Contact the Veteran and request he indentify any private respiratory treatment and hospitalization records, since October 2008, including private physician Maria E. Torres, M.D., and the Mayo Clinic. Undertake efforts to attempt to obtain any indicated records. The RO must make two attempts for the relevant private treatment records or make a formal findings that a second request for such records would be futile. All development efforts should be associated with the claims file. 3. Physically or electronically obtain all outstanding VA hospitalization and treatment records related to any respiratory condition, dated since June 2011. Any negative response(s) should be in writing and associated with the claims folder, including as to records available on Virtual VA. 4. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his residuals of spontaneous pneumothorax. The claims folder must be made available to and reviewed by the examiner. The examiner should record the full history of the condition, including the Veteran's account of symptomatology. The examiner shall report all pertinent findings. All tests deemed necessary by the examiner, to include current pulmonary function testing, must be performed. Then, the examiner must state whether the Veteran's residuals of spontaneous pneumothorax require oxygen therapy. The examiner must specifically state whether at any time during the period on appeal, it is at least as likely as not that, without taking into account his age, the Veteran has been precluded from obtaining or maintaining gainful employment (consistent with his education and occupational experience) due to the impairment caused (I) solely by his spontaneous pneumothorax residuals; or (II) by the aggregate of his service-connected disabilities. The examination report should reflect consideration of both the medical and lay evidence of record, including the prior November 2004, March 2009, and May 2012 VA examination reports; the February 2006 Mayo Clinic pulmonary function testing; the October 2010 physician's statement indicating that the Veteran cannot work due to, among other things, shortness of breath on exertion; the October 2011 prescription for oxygen for COPD and shortness of breath; the Veteran's competent account of his symptoms; and any other evidence deemed pertinent. The examiner should set forth a complete rationale for all findings and conclusions in a legible report. 5. Then, readjudicate the appeal, including a TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case that considers all evidence received since the April 2013 supplemental statement of the case. An appropriate period of time should be allowed for response before the claims file is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs