Citation Nr: 1320364 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 08-34 033A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to a disability rating in excess of 10 percent for right ankle degenerative joint disease prior to June 5, 2010, and in excess of 20 percent thereafter. 4. Entitlement to a total disability evaluation based on individual unemployability due to the Veteran's service- connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from November 1986 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2008 and April 2010 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Indianapolis, Indiana. During the pendency of this appeal, in August 2011, the RO determined that the Veteran's right ankle disability warranted a 20 percent disability rating effective June 5, 2010. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned, therefore, the issue remains in appellate status. In addition to the Veteran's claims file, the Veteran has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a November 2012 statement, the Veteran indicated that he wished to withdraw his claim of entitlement to service connection for bilateral hearing loss. 2. A low back disability, to include degenerative changes to the lumbar spine, has not been shown to have had its onset in service, within one year of service, nor is such disability otherwise a result of active service. 3. Resolving all reasonable doubt in the Veteran's favor, over the entire course of the period on appeal, the service-connected right ankle degenerative joint disease has been manifested by marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran (or his or her representative) concerning the issue of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for the establishment of service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2012). 3. The criteria for a 20 percent disability rating for service-connected right ankle degenerative joint disease from January 29, 2007, to June 4, 2010, have been met. 38 U.S.C.A. § 1155 (West 2002 & West Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). 4. The criteria for a disability rating in excess of 20 percent for service-connected right ankle degenerative joint disease have not been met. 38 U.S.C.A. § 1155 (West 2002 & West Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Service Connection for Bilateral Hearing Loss Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202, 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, a November 2012 statement, the Veteran indicated that he wished to withdraw his claim of entitlement to service connection for bilateral hearing loss. Based on the foregoing, the Board finds that there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim, and it is dismissed. 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 July 2007, August 2007, June 2008, and March 2010 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. For increased-compensation claims, 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. Records from the Social Security Administration have also been obtained. 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 a Low Back Disability 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. § 1131 (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, such as 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. In this case, the Veteran contends that he is entitled to service connection for a low back disability. A review of the Veteran's service treatment records indicates that he injured his ankle falling from a ladder aboard ship. The records are silent regarding any lumbar spine injury at the time of the fall. In addition, the remainder of the Veteran's service records, including the service separation examination, are silent for any diagnosis or treatment for a lumbar spine condition in service. After service, the Veteran was noted to have degenerative changes in his lumbar spine. An October 2006 examination of the lower spine indicated no acute bony abnormality of the lumbosacral spine and minimal degenerative disc osteophytes at multiple levels. In addition, the Veteran submitted a February 2008 statement from his VA physician indicating that he suffered from severe lower back pain. This physician stated that "I support [the Veteran] in his pursuit of disability." An August 2007 magnetic resonance imaging (MRI) study revealed disc disease and degenerative changes at multiple levels. In order to determine whether the Veteran has a low back disability that is related to active service, he was afforded a VA examination in November 2007. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran indicated that he had back pain since falling down a ladder well on ship during active service. He described severe constant pain that would radiate to the bilateral buttocks. The August 2007 MRI study indicating mild lumbar spine degenerative changes was referenced. The diagnosis was lower back pain. The examiner opined that the Veteran's diagnosed disability was less likely as not caused by or a result of his fall in service. The examiner explained that the Veteran sustained a fall in the service in June 1987. He had X-rays of his coccyx and sacrum at the time that were normal. In addition, the recent MRI had shown only mild degenerative changes. The examiner concluded that the Veteran's back pain was chronic in nature and not likely related to this fall. The Veteran's outpatient treatment records were reviewed and no contrary opinion was indicated. Based on the foregoing, the Board finds that entitlement to service connection for a low back disability is not warranted in this case. Here, the Veteran has been diagnosed with low back pain and mild degenerative changes to the lumbar spine. However, the VA examiner, who examined the Veteran and his claims file found that this condition was not related to a fall that the Veteran sustained in service. In addition, there is no evidence of a back disability is in service or within one year of service, and there is no additional opinion linking the Veteran's diagnosed lumbar spine disability to service. The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. The credibility and weight to be attached to these opinions is within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Black v. Brown, 10 Vet. App. 279 (1997). In this case, the Board finds that the opinions of the VA examiner in this case to be most persuasive, based as they were on examinations of the Veteran and his claims file. In addition, the Board notes that the Veteran has contended on his own behalf that his claimed disability is related to his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge. See Jandreau, 492 F.3d at 1377 (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. See Davidson, 581 F.3d at 1316. However, while VA must consider lay evidence, it may give it whatever weight it concludes the evidence is entitled to, and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); see also See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring) ("the Board should avoid overbroad statements about the competence of laypersons and should carefully distinguish its treatment of lay testimony of symptoms and its analysis of lay competence on issues of diagnosis or causation"). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds that the diagnosis and etiology of the Veteran's back disorder are complex medical questions, beyond the competency of a layperson. The Board further finds that the question regarding the relationship between such disability and active service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, as the Veteran has only provided his own conclusory statements regarding diagnosis and causation, the Board finds that the Veteran's statements to be of little probative value as he is not competent to opine on such complex medical questions. In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claim. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Because the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Disability Rating for Right Ankle Degenerative Joint Disease 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 rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria 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 (2012). 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 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" 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 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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, 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 (38 C.F.R. §§ 4.40), 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 (38 C.F.R. § 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. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. When rating spine disabilities, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2011). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 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). Service connection for residuals of a right ankle sprain was granted by rating action of the RO dated in August 1997, at which time an initial noncompensable disability rating was assigned. In Buie v. Shinseki, 24 Vet. App. 242 (2010), the United States Court of Appeals for Veterans Claims (Court) held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) (2012) requires any subsequent decision to relate back to the original claim. Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). A review of the Veteran's claims file reveals that following the issuance of the August 1997 rating decision, there is no evidence received within one year which relates to the service-connected right ankle disability. Thus, with respect to the Veteran's claim seeking an increased disability rating, the January 2008 rating action is the proper rating decision on appeal. The Veteran has been assigned a 10 percent disability rating for the service-connected right ankle degenerative joint disease prior to June 5, 2010, and a 20 percent disability rating, thereafter. The service-connected right ankle disability is rated pursuant to the criteria enumerated in 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. Traumatic arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent disability rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis). Diagnostic Code 5003 states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. Diagnostic Code 5271 provides the rating criteria for limitation of motion of the ankle. Pursuant to Diagnostic Code 5271, a 10 percent disability rating is warranted when there is moderate limitation of motion. To attain the maximum rating of 20 percent, the limitation of motion must be marked. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). Normal range of ankle motion is identified as dorsiflexion of 0 to 20 degrees and plantar flexion of 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2012). In this regard, the Veteran was afforded VA examinations in October 2007, March 2010, June 2010, and November 2012. Prior to June 5, 2010 The October 2007 VA examination report shows that the Veteran reported daily severe pain that was worse in the morning with activity. He added that regular flare-ups would be manifested by pain with significant limitation of motion and limited ability to ambulate. There were no alleviating factors. He would use a cane for ambulation. Physical examination revealed range of motion of dorsiflexion of 0 to 0 degrees, and plantar flexion of 0 to 35 degrees, with pain on motion. Following repetitive motion there was additional pain, but no fatigue, weakness, lack of endurance, or incoordination. There was objective evidence of pain, tenderness, and guarding of movement, but no edema, effusion, swelling, redness, heat, instability, weakness or abnormal movement. Gait was antalgic, and there was functional limitations to walking and standing. There was no ankylosis or inflammatory arthritis. X-rays indicated plantar calcaneal enthesophyte, but no bony abnormality. The diagnosis was right ankle degenerative joint disease. The March 2010 VA examination report shows that the Veteran was diagnosed with right ankle arthralgia and right ankle degenerative joint disease. He was noted to have pain, and the ankle condition was indicate to have a severe effect on sports, exercise, recreation, and a moderate effect on chores and traveling. After reviewing the evidence of record dated prior to June 5, 2010, the Board finds that the criteria for the next higher 20 percent disability rating have been met. In this regard, as set forth above, in October 2007, dorsiflexion was from 0 to 0 degrees, and the Veteran described his daily pain as severe. As such, the Veteran's right ankle disability can be said to be manifested by marked limitation of motion of the right ankle. Moreover, in March 2010, the VA examiner described the Veteran's disability as resulting in moderate to severe functional impairment. As such, resolving all reasonable doubt in the Veteran's favor, the Board finds that from the date of his claim for an increased disability rating to June 5, 2010, the right ankle disability warranted a 20 percent disability rating under Diagnostic Code 5271. The Board has also considered 38 C.F.R. §§ 4.40 , 4.45, and 4.59, in addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain. However, since the Veteran shall be receiving the maximum disability rating available under Diagnostic Code 5271, 38 C.F.R. §§ 4.40 and 4.45 do not apply. See Johnston v. Brown, 10 Vet. App.80, 85 (1997). The Board has also reviewed additional potentially applicable codes, but can find no basis on which to assign a disability rating in excess of 20 percent for the right ankle disability prior to June 5, 2010. In this regard, there is no evidence of ankylosis ratable under Diagnostic Codes 5270 and 5272 (2012). There is no other diagnostic code provision that would provide a disability rating in excess of 20 percent for an ankle disability. From June 5, 2010 The June 2010 VA examination report shows that the Veteran had undergone range of motion testing and that the Veteran had dorsiflexion of 0 to nine degrees and plantar flexion of 0 to 40 degrees with pain and stiffness with minimal motion of the ankle. The examiner found pain, tenderness, and abnormal movement, but no fatigue, weakness, lack of coordination or lack of endurance after repetitive motion. In addition, there was no edema, effusion, swelling, redness, heat, instability, weakness or guarding of movement. Gait was antalgic, and there were functional limitations to walking and standing. There was no ankylosis or inflammatory arthritis. X-rays were negative for acute fracture or dislocation. The November 2012 VA examination report shows that the examiner indicated the Veteran's claims file had been reviewed in connection with the examination and report. The diagnosis was right ankle strain. The Veteran indicated that flare-ups did not impact the function of the ankle. Range of motion testing indicated plantar flexion of 5 degrees without pain, and dorsiflexion of 5 degrees without pain. No additional limitation of range of motion was indicated in repetitive-use testing. Function loss was noted to be less movement than normal and pain on movement. There was tenderness, but normal muscle strength. There was no laxity and no ankylosis. The Veteran was indicated to have traumatic or degenerative arthritis. The Veteran was noted to use a cane. He was able to walk one block and stand for 15 minutes. After reviewing the evidence of record dated prior to June 5, 2010, the Board finds that the Veteran has been rated at the maximum 20 percent disability rating. As such, a higher disability rating is not available from June 5, 2010, unless there is evidence of ankylosis of the right ankle. As indicated above, the VA examination reports dated in June 2010 and November 2012 each specifically indicated that there was no ankylosis of the right ankle. Additionally, the Board has considered 38 C.F.R. §§ 4.40 , 4.45, and 4.59, in addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain. However, as the Veteran is receiving the maximum disability rating available under Diagnostic Code 5271, 38 C.F.R. §§ 4.40 and 4.45 do not apply. See Johnston, 10 Vet. App. at 85. The Board has considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected disability; however, the Board finds that the symptomatology was relatively consistent throughout the appeal period. Therefore, assigning an additional staged rating for such disability is not warranted. Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Extra-schedular Consideration Finally, the Board finds that the Veteran's right ankle disability does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's right ankle disability is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In this regard, as a result of this decision, the right ankle disability has been awarded an increased disability rating of 20 percent prior to June 5, 2010. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. ORDER The appeal concerning the claim of entitlement to service connection for bilateral hearing loss is dismissed. Service connection for a low back disability is denied. A 20 percent disability rating for service-connected right ankle degenerative joint disease from January 29, 2007, to June 4, 2010, is granted, subject to the governing regulations pertaining to the payment of monetary benefits. A disability rating in excess of 20 percent for service-connected right ankle degenerative joint disease is denied. REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). With respect to the Veteran TDIU claim, the board notes that 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; 4.16. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). 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(a). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). In determining whether the Veteran is entitled to a TDIU neither his non-service-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294 (1995). VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disabilities have on his ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a). In this case, the Veteran's service-connected disabilities meet the schedular percentage criteria for a TDIU. In addition, the record shows that the Veteran is currently unemployed. He alleges that his service-connected disabilities prevent him from obtaining gainful employment. In this regard, the Veteran was afforded VA examinations in November 2012. The Veteran's right ankle condition was found to have a moderate effect on his ability to engage in physical employment, as his ability to stand and walk are decreased and he uses a cane. He ankle condition was noted to have no impact on his ability to engage in sedentary employment. With respect to his service-connected depression, the examiner indicated that the Veteran did not appear to be experiencing symptoms of depression and that the Veteran did seem to have the capacity for employment. The Veteran symptoms were indicated not to impeded his capacity for physical and/or sedentary employment. Finally, with respect to the Veteran's service-connected tinnitus, the examiner found that the tinnitus should not render the Veteran unable to secure or maintain substantially gainful employment. While the Board finds the opinions presented in the November 2012 examinations helpful, these opinions do not address the central issue of the Veteran's claim. The question is not whether the Veteran's disabilities individually may impact employability or whether the Veteran may engage in sedentary work. Rather, the question is whether, cumulatively, all the service-connected disabilities, taken together, render it impossible for the average person to follow a substantially gainful occupation. As noted above, marginal employment shall not be considered substantially gainful employment. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the meaning of "substantially gainful employment" was discussed. In this context, the following standard announced by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Timmerman v. Weinberger, 510 F.2d 439, 442(8th Cir. 1975) was referenced: It is clear that the claimant need not be a total 'basket case' before the Courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Based on the foregoing, the Veteran should be afforded an additional examination that addresses this question. Finally, upon remand, the RO/AMC should update the Veteran's claims file with his most recent VA treatment records. The Veteran should be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain identified outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall take appropriate steps to contact the Veteran and request that he identify all VA and non-VA healthcare providers that have treated him since service for his service-connected disabilities. This should include all recent records of the Veteran's treatment with VA. The Veteran's vocational rehabilitation folder, if any, should also be obtained. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The RO/AMC shall then afford the Veteran an appropriate VA examination in order to determine the impact that his service-connected disabilities cumulatively have on his employability. All indicated tests and studies are to be performed. Prior to the examination, the claims file must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. After examining the Veteran, the examiner should (a) comment generally on the functional and industrial impairment caused by his service-connected disabilities and (b) indicate whether, without consideration of his age or nonservice-connected disabilities, the Veteran's service-connected disabilities prevent him from securing and following a substantially gainful occupation. In this regard, it is noted that marginal employment shall not be considered substantially gainful employment Opinions should be provided based on the results of examination, a review of the medical and lay evidence of record, and sound medical principles. The examiner should note that consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. The appellant is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs