Citation Nr: 1322136 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 08-09 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased disability rating greater than 10 percent for residuals of a fracture to the right scaphoid (right wrist). 2. Entitlement to an increased disability rating greater than 30 percent for residuals of a right ankle injury with traumatic arthritis. 3. Entitlement to an effective date earlier than January 8, 2008, for the grant of service connection for a lumbar spine disability. 4. Entitlement to an effective date earlier than September 4, 2008, for the assignment of a 30 percent disability rating for residuals of a right ankle injury with traumatic arthritis. 5. Entitlement to an effective date earlier than August 16, 2011 for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service from May 1979 to June 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2007, February 2009, and May 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A review of the Virtual VA paperless claims processing system reveals additional, pertinent VA treatment records dated from 2011 to 2012. However, in the April 2012 Supplemental Statement of the Case (SSOC), the RO indicated that it had reviewed these records in the Virtual VA system. Thus, there is no prejudice in the Board considering these records. In a February 2011 rating decision, the RO denied service connection for bilateral plantar fasciitis. The Veteran submitted a notice of disagreement (NOD) with that denial, and the RO issued a statement of the case (SOC) in October 2012; however, the Veteran has not filed a timely substantive appeal (e.g., VA Form 9 or equivalent statement). See 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302(b) (2008). As such, the Veteran has not perfected his appeal for the issue of entitlement to service connection for bilateral plantar fasciitis, and the issue is not currently before the Board for consideration. FINDINGS OF FACT 1. The Veteran's residuals of a fracture to the right scaphoid (right wrist) exhibits limitation of motion with consideration of pain and other factors of functional loss; however, it has not been productive of ankylosis. 2. The Veteran's residuals of a right ankle injury with traumatic arthritis exhibits malunion of the tibia and fibula with "marked" ankle disability, to include consideration of limitation motion with pain and other factors of functional loss; however, it has not been productive of ankylosis or nonunion of the tibia and fibula. 3. The RO denied service connection for a lumbar spine disorder in an October 1990 rating decision. Although the Veteran submitted a NOD with that decision, he did not perfect an appeal to the Board after the RO issued a SOC in March 1991. 4. There was no formal or informal claim for service connection for a lumbar spine disorder between the last final rating decision in October 1990 and the January 8, 2008, claim to reopen. 5. The Veteran filed a claim for an increased evaluation for his service-connected right ankle disability on December 18, 2006. 6. Under the applicable rating criteria, the date of entitlement for a 30 percent rating for the Veteran's service-connected right ankle disability was December 18, 2006. 7. It is not factually ascertainable the Veteran met the requirements for a higher 30 percent rating for a right ankle disability during the one-year period immediately preceding the December 18, 2006, claim for an increased evaluation. 8. As of January 8, 2008, the Veteran's service-connected disabilities were lumbar disc disease, rated as 40 percent disabling; a right ankle disability, rated as 30 percent disabling; and right scaphoid (wrist) fracture residuals, rated as 10 percent disabling. 9. As of January 8, 2008, the Veteran met the schedular criteria for TDIU. He did not meet those criteria prior to that time. 10. As of January 8, 2008, the evidence demonstrates that the Veteran was unable to secure or follow a substantially gainful occupation due to the combination of his service-connected lumbar spine, right wrist, and right ankle disabilities. 11. The date entitlement arose for the grant of TDIU, January 8, 2008, was later than the date of receipt of the increased rating/TDIU claim, December 18, 2006. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating higher than 10 percent for residuals of a fracture to the right scaphoid (right wrist) have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Code 5215 (2012). 2. The criteria for an increased disability rating higher than 30 percent for residuals of a right ankle injury with traumatic arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2012). 3. The criteria for an effective date earlier than January 8, 2008 for the grant of service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.155, 3.159, 3.400 (2012). 4. The requirements have been met for an earlier effective date of December 18, 2006, for the assignment of a 30 percent rating for a right ankle disability. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.155(a), 3.157(b), 3.159, 3.160(c), 3.400, 4.71a, Diagnostic Code 5262 (2012). 5. The requirements have been met for an earlier effective date of January 8, 2008, for the grant of TDIU. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.155, 3.159, 3.400, 4.16(a), (b), 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist For both the increased rating and earlier effective date issues, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters sent from the RO to the Veteran in January 2007, January 2008, June 2008, and March 2009. These letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his increased rating and earlier effective date claims; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the January 2007 and January 2008 VCAA letters sent from the RO further advised the Veteran of the elements of a disability rating and an effective date. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Moreover, the June 2008 VCAA notice letter advised the Veteran of the additional notice requirements for increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (minimum notice requirements pursuant to VCAA for an increased rating claim), rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice, and rejecting Veteran-specific notice as to the effect on daily life and as to the assigned or cross-referenced diagnostic code under which the disability is rated). The outcome of these holdings is that VCAA notice for an increased rating claim does not have to be individually tailored to each Veteran's particular facts, but rather only a generic notice is required. The June 2008 VCAA letter was fully sufficient. With regard to the earlier effective date issues, these issues arise from disagreement with the effective date assigned upon the grant of service connection for a lumbar spine disability, an increased 30 percent rating for a right ankle disability, and the grant of TDIU. In this regard, the courts have held, and VA's General Counsel has agreed, that in cases where service connection has been granted and an effective date has been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Indeed, to hold that section 5103(a) continues to apply after a disability rating or an effective date has been determined would essentially render sections 7105(d) and 5103A and their implementing regulations insignificant and superfluous, thus disturbing the statutory scheme. Dingess v. Nicholson, 19 Vet. App. 473, 491, 493, 500-01 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). See also VAOPGCPREC 8-2003 (Dec. 22, 2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. In any event, although adequate VCAA notice was provided with regard to establishing an earlier effective date, no further VCAA notice is necessary anyway for a downstream effective date issue. Thus, the Veteran has received all required notice in this case, such that there is no error in the content of VCAA notice. See also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With regard to the timing of VCAA notice, the U.S. Court of Appeals for Veterans Claims (Court) and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued all required VCAA notice prior to the respective rating decisions on appeal. Thus, there is no timing error. With respect to the duty to assist, the RO has secured the Veteran's service treatment records, VA treatment records, and several VA examination reports. For his part, the Veteran has submitted personal statements, argument from his representative, duplicate service treatment records, and private medical evidence. The Veteran has not identified any outstanding, available evidence that is relevant to his claims being decided herein. The Veteran was also afforded VA examinations in February 2007, September 2008, March 2009, September 2010, and December 2011 in connection with his claims for increased evaluations for his service-connected right wrist and right ankle disabilities. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate, as they are predicated on a review of the Veteran's medical history as well as on an examination and fully address the rating criteria that are relevant to rating the disabilities in this case. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. 38 C.F.R. § 3.327(a). In fact, VA treatment records dated in 2011 and 2012 do not reveal any worsening of either disability. In any event, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Governing Laws and Regulations for Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). VA regulation indicates that the Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). With any form of arthritis, painful motion is an important factor of disability. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 indicate that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). Analysis - Increased Evaluation for Right Wrist Disability The Veteran's residuals of a fracture to the right scaphoid (right wrist) have been assigned the maximum 10 percent rating available pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5215 (limitation of motion of the wrist). This 10 percent rating has remained in effect since August 22, 1995. The Veteran filed an increased rating claim for his service-connected right wrist disability in December 2006. The Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, 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, 58 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times when his right wrist disability has been more severe than at others, and rate it accordingly. The Veteran is also service-connected at 10 percent disabling for radiculopathy of the right upper extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8515 (incomplete paralysis of the median nerve). Symptoms of this disability include pain, tingling, numbness, and paresthesias of the right hand and fingers. This disability is not currently on appeal. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. As demonstrated by the medical evidence of record, including the December 2011 VA examination report, the Veteran is right-handed and as such, major, as opposed to minor, wrist disability ratings are applicable. 38 C.F.R. § 4.69. Normal range of motion for the wrist is 70 degrees of dorsiflexion (extension) and 80 degrees of palmar flexion. 38 C.F.R. § 4.71, Plate I. Normal ulnar deviation is 45 degrees, while normal radiation deviation is 20 degrees. Id. Diagnostic Code 5215 provides for a maximum rating of 10 percent for limitation of motion of the wrist for either the dominant or non-dominant hand when dorsiflexion is less than 15 degrees or when palmer flexion is limited in line with the forearm. 38 C.F.R. § 4.71a (2012). The Veteran is already assigned a maximum 10 percent rating under this diagnostic code for limitation of right wrist motion. Consequently, he cannot be an increased rating under the criteria governing limitation of motion of the wrist. Under Diagnostic Code 5214, a 30 percent disability evaluation is warranted when there is favorable ankylosis in 20 to 30 degrees dorsiflexion in the major wrist. A 40 percent disability evaluation is contemplated for ankylosis of the major wrist in any other position, except favorable. A maximum 50 percent rating is assigned for ankylosis of the major wrist when ankylosis is unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation. 38 U.S.C.A. § 4.71a (2012). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased rating in excess of 10 percent for his service-connected right wrist disability. 38 C.F.R. § 4.7. The probative lay and medical evidence of evidence of record does not reflect any evidence of ankylosis of the right wrist. In fact, the December 2011 VA examiner stated that there was no evidence of ankylosis. The Board notes that ankylosis is 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) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. In this case, the Veteran has always exhibited some range of motion for the right wrist. See February 2007 VA examination report (50 degrees of dorsiflexion, 60 degrees of palmar flexion, 40 degrees ulnar deviation, 15 degrees radial deviation); March 2009 VA examination report (full range of motion for the fingers, 70 degrees of dorsiflexion, 75 degrees of palmar flexion, 40 degrees ulnar deviation, 20 degrees radial deviation with consideration of pain and repetitive motion); December 2011 VA examination (40 degrees of dorsiflexion, 80 degrees of palmar flexion, with consideration of painful motion and repetitive motion). Such findings indicate that his wrist is not fixed or immobile. Moreover, even when considering the Veteran's complaints of pain, the evidence does show that there is any functional loss more nearly approximating ankylosis. In fact, the December 2011 VA examiner indicated that, following repetitive motion testing, the Veteran still had palmar flexion to 80 degrees and dorsiflexion to 40 degrees, and he stated that there was no additional limitation after such testing. There was also no objective evidence of painful motion during palmar flexion, and painful motion was only demonstrated beginning at 40 degrees. Thus, even with consideration of the factors of pain functional loss, the Board finds that the Veteran's pain and limitation of wrist motion do not warrant a rating in excess of 10 percent. 38 C.F.R. §§ 4.40, 4.45; 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. With regard to lay evidence, the Board notes that the Veteran has reported experiencing difficulty gripping with his right hand, constant pain, numbness, swelling, weakness, use of a wrist brace, trouble writing, and difficulty with activities of daily living and working. He has indicated that he takes methadone for the pain and uses grab bars and a shower chair in the bathroom. In addition, he has reported having flare-ups. Many of these symptoms are also medically confirmed. In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected right wrist disability. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). However, in the present case, there has been no lay allegation or evidence of ankylosis of the right wrist, which is the only symptom for which a rating in excess of 10 percent can be assigned for this disability. As such, the Veteran's competent and credible lay statements are not sufficient to warrant an increased rating. Accordingly, the Board concludes that the medical and lay evidence does not warrant an evaluation in excess of 10 percent for the Veteran's residuals of a fracture to the right scaphoid (right wrist). 38 C.F.R. § 4.3. Analysis - Increased Evaluation for Right Ankle Disability The Veteran's residuals of a right ankle injury with traumatic arthritis have been assigned a 30 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5262 (impairment of the tibia and fibula with "marked" ankle disability). This 30 percent rating has remained in effect since September 4, 2008. The Veteran filed an increased rating claim for his service-connected right wrist disability in December 2006. The Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, 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, 58 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times when his right wrist disability has been more severe than at others, and rate it accordingly. Under Diagnostic Code 5262, the minimum 10 percent evaluation is assigned when there is malunion of the tibia and fibula with slight knee or ankle disability. A higher evaluation of 20 percent is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent is warranted where there is malunion of the tibia and fibula with marked knee or ankle disability. Finally, a 40 percent evaluation is warranted for nonunion with loose motion requiring a brace. 38 U.S.C.A. § 4.71a (2012). The words "slight," "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. 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. It should also be noted that use of terminology such as "severe" by VA examiners and others is an element of evidence to be considered by the Board, but 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. Normal range of motion for the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees, as set forth at 38 C.F.R. § 4.71, Plate II. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected right ankle disability. The evidence of record does not reveal nonunion of the tibia and fibula with loose motion requiring a brace. There is simply no evidence or lay assertion of such symptomatology. Thus, a higher rating cannot be granted under Diagnostic Code 5262. Nevertheless, the Board has also considered whether an increased evaluation would be in order under other relevant diagnostic codes. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." 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. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). While the Board has considered whether an increased evaluation would be in order under other relevant diagnostic codes, such as that governing ankylosis of the ankle and limitation of ankle motion, the Board finds that the criteria for a rating in excess of 30 percent for his right ankle disability are simply not met. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5271 (2012). In this regard, the December 2011 VA examiner specifically found that there was no evidence of right ankle ankylosis, and no other medical professional has documented right ankle ankylosis. Indeed, the range of motion findings documented in the records demonstrate that the Veteran's ankle is not fixed or immobile. See February 2007 VA examination report (40 degrees of plantar flexion and 10 degrees of dorsiflexion, with no pain); September 2008 VA examination report (10 degrees of plantar flexion and 5 degrees of dorsiflexion with consideration of pain on motion and repetitive motion). In fact, his range of motion for the right ankle actually improved at subsequent VA examinations dated in March 2009 and December 2011. The Board does note that, at during VA examinations and in VA treatment records, the Veteran was observed as having chronic right ankle pain, swelling, edema, fatigue, weakness, and lack of endurance. It was also noted that he wears an ankle brace and uses a cane and a walker to ambulate. He has an antalgic gait. However, even with consideration of the factors of functional loss, the Board finds that the Veteran's pain and limitation of right ankle motion do not more nearly approximate ankylosis. 38 C.F.R. §§ 4.40, 4.45; 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. In fact, there was no objective evidence of painful motion upon range of motion testing at the December 2011 VA examination, and there was no additional limitation of motion following repetitive motion testing. Indeed, the examiner stated that the Veteran did not have functional loss or impairment of the ankle. Moreover, the Veteran is already rated above the maximum 20 percent evaluation available for limitation of ankle motion under Diagnostic Code 5271. In addition, the Veteran's limitation of right ankle motion was already contemplated in the assignment of the current 30 percent evaluation under Diagnostic Code 5262. Therefore, no additional diagnostic codes will be applied. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). With regard to lay evidence, the Board notes that the Veteran has reported experiencing right ankle pain, limping, edema, stiffness, swelling, fatigue, lack of endurance, weakness, and use of an ankle brace. He has indicated that he takes methadone for the pain, has had steroid injections, uses grab bars and a shower chair in the bathroom, and uses a cane and a walker to ambulate. He has reported having frequent falls with as many as 15 in 6 months. He has also stated that he cannot engage in prolonged standing or walking and can no longer perform housework or yard work, although he is able to cook. In addition, the Veteran has reported having flare-ups. Many of these symptoms are also medically confirmed. In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected right wrist disability. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). However, in the present case, there has been no lay allegation or evidence of ankylosis of the right ankle, which is the only symptom for which a rating in excess of 30 percent can be assigned. As such, the Veteran's competent and credible lay statements are not sufficient to warrant an increased rating. Accordingly, the Board concludes that an evaluation in excess of 30 percent is not warranted for the Veteran's residuals of a right ankle injury with traumatic arthritis. 38 C.F.R. § 4.3. Hart Consideration Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007), the Board has determined that there is no basis to "stage" the Veteran's ratings for his service-connected right wrist and right ankle disability. Indeed, the evidence does not support an increased evaluation for either disability at any point during the appeal. Extraschedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring the case for extra-schedular consideration, for either the Veteran's service-connected right wrist disability or right ankle disability. 38 C.F.R. § 3.321(b)(1). The Board finds that the Veteran's right wrist and right ankle symptomatology is fully addressed by the rating criteria under which his disabilities are rated. Because the rating criteria reasonably describe the claimant's disability level and symptomatology for his right wrist and right ankle, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluations are, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence fails to show anything unique or unusual about the Veteran's right wrist and right ankle disabilities that would render the schedular criteria inadequate. There are no additional symptoms of his right wrist and right ankle disabilities that are not addressed by the Rating Schedule. The Board has also considered the factors of functional loss listed in 38 C.F.R. §§ 4.40 and 4.45 and 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Moreover, there are higher ratings available under other diagnostic codes, but he has not been shown to have such symptomatology. Although the Veteran's right wrist and right ankle disabilities clearly interfere with his ability to work, (see e.g., February 2007, September 2008, and December 2011 VA examination reports), such interference is contemplated by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate 10 and 30 percent ratings are adequate to compensate the Veteran for loss of working time as the result of his right wrist and right ankle disabilities. Because the threshold step of Thun is not met here, and the Veteran's disability picture is contemplated by the Rating Schedule, it is not necessary to consider the second step of whether the claimant has an exceptional disability picture that exhibits other related factors identified in the regulations as "governing norms," such as marked interference with employment or frequent periods of hospitalization. 22 Vet. App. at 116. See also 38 C.F.R. § 3.321(b)(1). The Board is aware of the Court's recent holding that VA's disability-by-disability interpretation of § 3.321(b)(1) was consistent with its statutory and regulatory scheme. Johnson v. Shinseki, No. 10-1785 (Vet. App. Mar. 27, 2013). Thus, the Board does not have to consider the Veteran's multiple service-connected disabilities on a collective basis when determining whether an extraschedular referral is warranted here. The Board has considered them individually in determining that an extraschedular referral is not warranted for either disability here. Governing Laws and Regulations for Effective Dates Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). Unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a). Appellate review of a rating decision is initiated by a NOD and completed substantive appeal after a SOC has been furnished. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. §§ 3104(b), 3.105(a). The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C.A. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed"). In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. In order for the Veteran to be awarded an effective date based on an earlier claim, he or she has to show CUE in the prior denial of the claim. 38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). However, in this case, the issue of CUE in a specific, prior RO decision has not been raised by the Veteran, and therefore, it is not before the Board at this time. In addition, another exception applies when evidence, other than service treatment records, is received in the appeal period following a subsequent disallowance, resulting in a later grant of service connection, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be pain or furnished to any individual under the laws administered by the Secretary. See 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151(a). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The applicable statutory and regulatory provisions require that VA look to all communications from a Veteran which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop the Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Federal Circuit has emphasized that this duty "is separate and distinct from the statutory benefit-of-the-doubt requirement under 38 U.S.C. § 5107(b)." Harris, 704 F.3d at 948. The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board's decision. See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). In determining whether an informal claim has been made, VA is not required to read the minds of the Veteran or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The pending claims doctrine provides that a claim remains pending in the adjudication process, even for years, if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007). The essential requirements of any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Analysis - Effective Date for Service Connection for a Lumbar Spine Disorder In the February 2009 rating decision on appeal, the RO reopened the Veteran's claim for service connection for a lumbar spine disorder and granted service connection. The RO assigned an effective date of January 8, 2008, which was the date of receipt of his claim to reopen. See 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). The grant of service connection was based on a July 2008 VA physician opinion and a September 2008 VA joint examination that indicated that the Veteran's current lumbar spine degenerative disc disease was secondary to (caused by) his service-connected right ankle disability. The Veteran filed a NOD with the effective date assigned, and the appeal has now reached the Board. The Veteran seeks an earlier effective date of December 18, 2006, based on his assertion that he filed an earlier claim for service connection for a lumbar spine disorder at that time. See April 2009 NOD. The Veteran was discharged from service in June 1982. At the outset, the Board finds that there is simply no evidence that a claim for service connection for a lumbar spine disorder was received within one year after the Veteran's separation from service in June 1982. Therefore, the effective date cannot be the day following separation from service. 38 C.F.R. § 3.400(b)(2). The Veteran did file an informal claim for service connection for a lumbar spine (back) disorder in August 1990, but the RO denied that claim in an October 1990 rating decision. Although the Veteran submitted a NOD with that decision, he did not perfect his appeal of that claim by filing a timely substantive appeal (e.g., VA Form 9 or equivalent statement) after the RO sent him a SOC in March 1991. The RO notified the Veteran of that decision and apprised him of his procedural and appellate rights, yet he did not perfect an appeal. There was no indication that any letters were returned or not received by the Veteran. Therefore, the October 1990 rating decision is final on the issue of entitlement to service connection for a lumbar spine disorder. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302, 20.1103 (2012). Following the October 1990 rating decision, the NOD with that decision, and the March 1991 SOC, the claims file does not contain any communication from the Veteran or his representative indicating an intent to seek, or a belief in entitlement to, service connection for a lumbar spine disorder prior to the current effective date of January 8, 2008. 38 C.F.R. §§ 3.1(p), 3.155(a). The Board has considered the Veteran's assertion that he filed an earlier claim for service connection for a lumbar spine disorder on December 18, 2006. See April 2009 NOD. However, a review of the December 18, 2006, claim reveals that the Veteran claimed increased ratings for right ankle and right hand disabilities at that time. There was no mention of a lumbar spine disorder. Further, there is no provision in the law for awarding an earlier effective date based on the Veteran's assertion that his lumbar spine disorder existed prior to the date of the claim to reopen, which was January 8, 2008. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon, 12 Vet. App. at 35; Talbert, 7 Vet. App. at 356-57. The Board emphasizes that, in determining whether an informal claim has been made, VA is not required to read the minds of the Veteran or his representative. Cintron, 13 Vet. App. at 259. As noted above, the Court held, in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." The Board's actions are bound by the applicable law and regulations as written and the Board has no power to grant benefits not authorized by law. 38 U.S.C.A. § 7104(c). The Board also emphasizes that the effective date assigned for a secondarily service-connected disability does not relate back to the filing date of a prior claim for the antecedent disability. Ellington v. Nicholson, 22 Vet. App. 141 (2007). The effective date assigned for a secondary service-connected condition does not have to be the same as the effective date for the underlying condition. Ross v. Peake, 21 Vet. App. 528 (2008). The plain meaning of 38 C.F.R. § 3.310(a) is and has always been to require VA to afford secondarily service-connected conditions the same treatment (no more or less favorable treatment) as the underlying service-connected conditions for all determinations." Roper v. Nicholson, 20 Vet. App. 173, 181 (2006). This includes the assignment of an effective date. Accordingly, as with any other claim, the effective date assigned for a secondarily service-connected condition is governed by § 3.400. Consequently, the effective date for the Veteran's secondarily service-connected lumbar spine disability is based solely on the date VA received his claim for secondary service connection, which in this case was January 8, 2008. It does not relate back to the date he filed his original claim for the underlying service-connected right ankle disability. The law is clear. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(ii), (r). Accordingly, the preponderance of the evidence is against an effective date earlier than January 8, 2008, for the grant of service connection for a lumbar spine disorder. 38 U.S.C.A. § 5107(b). The appeal is denied. Governing Law and Regulations for Effective Dates for Increased Ratings The effective date provisions for awards of increased disability compensation include a general rule which is that an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The corresponding VA regulation expresses this rule as "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1). The law provides an exception to this general rule governing claims "for increase." 38 U.S.C.A. § 5110(a), (b)(2). If the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is ascertainable that the increase occurred as long as the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010). See also Harper v. Brown, 10 Vet. App. 125 (1997); Quarles v. Derwinski, 3 Vet. App. 129, 134- 135 (1992); VAOPGCPREC 12-98, 63 Fed. Reg. 56704 (1998). Thus, three possible dates may be assigned depending on the facts of the case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See again Gaston, 605 F.3d at 982-8; Harper, 10 Vet App at 126. In addition, the Court has indicated that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). Therefore, determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred or was "ascertainable". 38 C.F.R. §§ 3.155, 3.400(o)(2) (2012); Hazan, 10 Vet. App. at 521. Analysis - Effective Date for Right Ankle Disability From June 9, 1982, to April 1, 1986, the Veteran's right ankle disability was rated as 20 percent disabling. From April 1, 1986, to May 15, 1990, the Veteran's right ankle disability was rated as 10 percent disabling. From May 15, 1990, to September 4, 2008, the Veteran's right ankle disability was rated as 20 percent disabling. From September 4, 2008, to the present, the Veteran's right ankle disability has been rated as 30 percent disabling. In the present case, the issue of entitlement to an effective date earlier than September 4, 2008, for the assignment of a 30 percent disability rating for a right ankle disability stems from a claim for an "increased rating" received on December 18, 2006. The distinction is important for effective date purposes. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). That it, different statutory and regulatory provisions apply depending on whether the claim is an original (initial disability) claim - effective date can be no earlier than the date of claim - or one for increased compensation - effective date may date back as much as one year before the date of the claim for increase. See 38 U.S.C. §§ 5110(a), (b)(2); 38 C.F.R. §§ 3.400(b)(2)(i), (o)(2). In the present case, the claim is one for increased compensation. The Veteran's increased rating claim for a right ankle disability was received on December 18, 2006, and the RO granted an increased 30 percent rating in the February 2009 rating decision on appeal. However, the RO assigned an effective date of September 4, 2008, for the 30 percent rating. In so doing, the RO determined September 4, 2008, was the date entitlement first arose for a 30 percent rating, in light of the findings of a VA examination conducted on that date. As such, the date entitlement first arose for a 30 percent rating for a right ankle disability (September 4, 2008) was later than the date of receipt of the increased rating claim (December 18, 2006). See 38 U.S.C.A. § 5110(a),(b); 38 C.F.R. § 3.400(o). Thereafter, the Veteran expressed disagreement with the effective date assigned for the 30 percent rating, and the appeal has now reached the Board. The Veteran seeks an earlier effective date of December 18, 2006, for the 30 percent rating for the right ankle disability, based on the date the RO received the Veteran's increased rating claim for a right ankle disability. As discussed in the decision above, the Veteran's residuals of a right ankle injury with traumatic arthritis have been assigned a 30 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5262 (impairment of the tibia and fibula with "marked" ankle disability). This 30 percent rating has remained in effect since September 4, 2008. Under Diagnostic Code 5262, the minimum 10 percent evaluation is assigned when there is malunion of the tibia and fibula with slight knee or ankle disability. A higher evaluation of 20 percent is warranted with moderate knee or ankle disability. A 30 percent is warranted where there is marked knee or ankle disability. A 40 percent evaluation is warranted for nonunion with loose motion requiring a brace. 38 U.S.C.A. § 4.71a (2012). The words "slight," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. 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. If two evaluations are potentially applicable, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Upon review of the evidence, an effective date of December 18, 2006, but no earlier, is warranted for the award of a 30 percent rating for a right ankle disability. Historically, in response to an earlier increased rating claim, the RO denied the Veteran a higher 30 percent rating for a right ankle disability in a July 2001 rating decision. The RO notified the Veteran of that decision and apprised him of his procedural and appellate rights, but he did not initiate an appeal. There was no indication that the letter was returned or not received by the Veteran. Therefore, the July 2001 rating decision is final and binding based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2001). The RO's July 2001 denial of an increased rating beyond 20 percent for the Veteran's right ankle disability represents the last prior final adjudication of his increased rating claim. See Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008); Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008). See also 38 C.F.R. §§ 3.160(c) (defining a "pending claim" as one that "has not been finally adjudicated"). Here, the Board has determined that the July 2001 rating decision was final. Finality determinations contained within that decision or within other prior decisions that denied a higher rating for his right ankle disability are final and can only be addressed through a claim of CUE as to those decisions. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). For the Board to address such finality determinations without a claim of CUE before it would be ultra vires. See Juarez and Williams, supra. As such, the Board cannot consider the provisions of 38 C.F.R. § 3.157(b) with regard to VA or private medical evidence prior to July 2001 in determining the effective date because this evidence is dated prior to the final July 2001 rating decision. Further, the date of receipt for the increased rating for a right ankle disability following the July 2001 rating decision was December 18, 2006. See 38 C.F.R. §§ 3.155, 3.400. A review of the claims folder reveals no formal or informal claim for an increased rating between the time of the final July 2001 rating decision and the claim filed on December 18, 2006. 38 C.F.R. §§ 3.1(p), 3.155(a); LaLonde, 12 Vet. App. at 382. The Veteran has never disputed this fact. As to the date of entitlement, the Board finds that the December 18, 2006, claim also serves as probative lay evidence of the date of entitlement. The Veteran's December 18, 2006, claim establishes "marked ankle" disability under Diagnostic Code 5262, which is supportive of an increased 30 percent rating for a right ankle disability at that time. See 38 C.F.R. § 4.71a. Specifically, in the December 18, 2006, statement, the Veteran competently and credibly asserted that his right ankle had worsened, that he was not able to stand for more than 10 minutes, and that he had constant pain and swelling. After making this statement, VA treatment records confirm that the Veteran sought treatment for the right ankle. A February 2007 VA examiner noted complaints of right ankle pain, weakness, limitation of motion, lack of endurance, fatigue, frequent flare-ups, several falls, the use of a cane, and difficulty working. VA treatment records dated in March 2007 and November 2007 also noted right ankle pain, the use of a brace, and the use of a 4-pronged cane. In addition, a February 2008 VA physical therapy consultation note documented the report of 15 falls in the last year and constant right ankle pain even with medication. As a whole, the probative lay and medical evidence of record supports an increased 30 percent rating for the right ankle back to December 18, 2006. In this case, the date of receipt of the increased claim and the date of entitlement for a 30 percent rating for a right ankle disability are one in the same, which is December 18, 2006. See 38 U.S.C.A. § 5110(a),(b); 38 C.F.R. § 3.400(o). In addition, there is no probative lay or medical evidence that a 30 percent rating for the right ankle was factually ascertainable within the one-year period before the receipt of the December 18, 2006, claim for an increased evaluation. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In fact, there is no evidence dated within the one year period preceding the December 2006 claim. Accordingly, the Board concludes that December 18, 2006, is the proper effective date for the increased 30 percent rating for the Veteran's service-connected right ankle disability. 38 U.S.C.A. § 5107(b). Governing Law and Regulations for TDIU Effective Date Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. A TDIU claim is a claim for increased compensation; thus, the effective date rules for increased compensation generally apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449, 453 (2000); Norris v. West, 12 Vet. App. 413, 420 (1999). Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. With regard to an earlier effective date for a TDIU, the Federal Circuit has held once a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether he or she is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). See also VAOPGCPREC 12-2001 (July 6, 2001). However, there must be cogent evidence of unemployability in the record. Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). VA must consider a TDIU claim in this instance even though the Veteran did not make a specific request for a TDIU. Roberson, 251 F.3d at 1384. In Rice v. Shinseki, 22 Vet. App. 447, 452-455 (2009), the Court further that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Moreover, as to the effective date for TDIU, VA is required to consider the potential applicability of 38 C.F.R. § 3.156(b), which provides that "[n]ew and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." The principle of staged ratings may be applied in considering the effective date for a TDIU evaluation as either part of the initial disability evaluation or as part of a claim for increase. See e.g., Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In summary, the effective date assignable for a TDIU rests on two separate determinations. See 38 C.F.R. § 3.400(o)(1) and (2). First, there needs to be a finding as to the date on which the appellant initiated his increased rating/TDIU claim in a formal or informal claim. Second, there needs to be a finding as to what date the medical and lay evidence of record showed his entitlement to TDIU arose. In other words, a finding must be made regarding when his service-connected disabilities, alone, rendered him unable to secure or follow a substantially gainful occupation. See 38 U.S.C.A. § 5110(b); 38 C.F.R. §§ 3.151, 3.400(o), 4.15, 4.16. Analysis - Effective Date for Grant of TDIU In the May 2012 rating decision on appeal, the RO granted entitlement to TDIU effective from August 16, 2011, which was both the date of the TDIU claim (according to the RO) and the date of entitlement (based on the Veteran meeting the percentage requirements for TDIU on that date). See 38 C.F.R. §§ 4.16(a), 4.25. The Veteran has expressed disagreement with the effective date assigned for the grant of TDIU. Specifically, the Veteran contends that his service-connected disabilities have prevented him from working as a teacher's assistant since December 2006, which he believes should be the effective date. See March 2009 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability); January 2013 representative statement. With regard to the date of claim for TDIU, the Veteran filed his increased rating claim for right ankle and right wrist disabilities in December 2006. During the course of the increased rating appeal, VA secured and the Veteran submitted evidence of unemployability due to his service-connected disabilities. See February 2007 VA examination; July 2008 VA physician opinion; September 2008 VA examination; March 2009 TDIU application; November 2009 VA examination; December 2011 VA examinations and opinion on TDIU. Thus, the Board finds a request for TDIU was reasonably raised as part of the December 2006 increased rating claim. See 38 C.F.R. § 3.156(b); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability). See also Mayhue v. Shinseki, 24 Vet. App. 273, 280-282 (2011); Norris v. West, 12 Vet. App. 413, 421 (1999); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Therefore, a claim for TDIU is part of the increased rating claim filed in December 2006. There is no allegation of unemployability prior to that date, as the Veteran was gainfully employed as a teacher's aide prior to December 2006. Thus, in the present case, the effective date issue for TDIU stems from an "increased rating" claim dated in December 2006. This is significant because different statutory and regulatory provisions apply depending on whether the TDIU claim is considered an original (initial disability) claim - effective date can be no earlier than the date of claim - or one for increased compensation - effective date may go back as much as one year before the date of the claim for an increase rating. See 38 U.S.C. §§ 5110(a), (b)(2); 38 C.F.R. §§ 3.400(b)(2)(i), (o)(2). With regard to the date of entitlement to TDIU, the Board notes that the Veteran first met the schedular criteria for TDIU as of January 8, 2008. In a February 2009 rating decision, the RO granted service connection for lumbosacral degenerative discogenic disease with spinal stenosis and assigned a 40 percent evaluation effective from January 8, 2008. He was already service-connected for a right ankle disability, rated as 30 percent disabling; and right scaphoid (wrist) fracture residuals, rated as 10 percent disabling. Thus, as of January 8, 2008, the combined service-connected disability rating was 60 percent. See 38 C.F.R. § 4.25 (combined ratings table). It follows that, as of January 8, 2008, the schedular criteria for TDIU were met, because all of the Veteran's service-connected disabilities affected a single body system and could be considered as one single 60 percent disability they. 38 C.F.R. § 4.16(a). With regard to the date of entitlement for a TDIU, the Board must now determine when entitlement to TDIU became factually ascertainable. In other words, a finding must be made as to when the Veteran became unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In this regard, an April 2008 VA examiner noted the Veteran was disabled from his usual occupation as a teacher's aide due to his service-connected lumbar spine. The examiner also indicated that he had difficulty with walking on his service-connected right leg. In July 2008, a VA treating physician submitted a letter opining that the Veteran was unable to work due to his service-connected chronic lumbar spine and right ankle disabilities. It was noted that he had chronic pain and an antalgic gait. The Veteran also submitted federal tax returns confirming that he had no individual income in 2008 and 2009. Any family income came from his spouse's labor. In addition, a November 2009 VA spine examiner assessed "severe" functional limitation due to limitation of motion of the service-connected lumbar spine. In summary, all of this evidence confirms that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities as of January 8, 2008. 38 C.F.R. § 4.16(a). Because the date entitlement arose for TDIU (January 8, 2008), is later than the date of receipt of the TDIU claim (December 18, 2006), the proper effective date for TDIU is the date entitlement arose. See 38 U.S.C.A. §§ 5107(b), 5110(a),(b); 38 C.F.R. § 3.400. The Board now turns to whether an earlier effective date for a TDIU rating can be warranted on an extraschedular basis prior to January 8, 2008. See 38 C.F.R. § 4.16(b). Prior to January 8, 2008, the Veteran did not meet the schedular percentage criteria for TDIU. See 38 C.F.R. § 4.16(a). With regard to an extraschedular rating, if the Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age which would have justified an earlier effective date for a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue would be addressed if such a referral was made. 38 C.F.R. § 4.16(b). Consequently, the only remaining question in this case is whether there is evidence the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, for purposes of a possible extraschedular evaluation at any time prior to January 8, 2008. 38 C.F.R. § 4.16(b). The Board realizes it cannot assign an extraschedular evaluation in the first instance under § 4.16(b) or § 3.321(b)(1). Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). See also Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Nevertheless, the Board may adjudicate whether a referral to the Under Secretary for Benefits or Director of Compensation and Pension Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun, 22 Vet. App. at 115; Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the appropriate official has determined that an extraschedular evaluation under § 4.16(b) is not warranted does the Board have jurisdiction to decide the claim on the merits. In fact, the Court has held that, although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating under § 4.16(b) or § 3.321(b)(1) once the Director of Compensation and Pension determines that an extraschedular rating is not warranted. Anderson, 22 Vet. App. at 427-28. See also Floyd, 9 Vet. App. at 96-97. At present, the Board has to make the initial determination as to whether referral to the Director of Compensation and Pension Service is appropriate for an extraschedular evaluation under § 4.16(b). In this regard, there is some medical evidence of unemployability due to the Veteran's service-connected disabilities prior to January 8, 2008. See e.g., February 2007 VA examination. The February 2007 VA examiner noted that the Veteran had not worked since December 2006, but did not provide an actual opinion as to employability. The February 2007 VA examiner only noted that the use of a computer and standing for a prolonged period of time was difficult for the Veteran due to his service-connected right wrist and right ankle disabilities. With regard to lay evidence, the Veteran alleges that he has had no gainful employment as a teacher's aide since December 2006 due to his service-connected disabilities. See March 2009 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). After weighing the medical and lay evidence of record, the Board finds no basis for an extraschedular award of TDIU under 38 C.F.R. § 4.16(b) prior to January 8, 2008. The Veteran has a college level education. A March 2009 VA Form 21-4192 (Request for Employment Information in Connection With Claim for Disability Benefits) completed by the Veteran's former employer stated that he "resigned due to personal reasons" from his position as a teacher's aide in December 2006. It was noted that no concession was made based on the Veteran's disabilities by the Veteran's employer. The Veteran also failed to submit a federal tax return for the year of 2007. He only submitted latter tax returns showing no personal income in 2008 and 2009. Moreover, a March 2007 VA outpatient treatment record indicates that the Veteran was still employed full-time. In addition, a May 2008 VA registration data revealed that the Veteran was still employed part-time as a teacher and also had other income from farm, rank, property, or business. This evidence raises questions as to the Veteran's credibility and provides more negative evidence against the extraschedular claim for TDIU under 38 C.F.R. § 4.16(b) prior to January 8, 2008. Accordingly, the preponderance of the evidence supports an earlier effective date of January 8, 2008, but no earlier, for the grant of TDIU. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER An increased disability rating greater than 10 percent for residuals of a fracture to the right scaphoid (right wrist) is denied. An increased disability rating greater than 30 percent for residuals of a right ankle injury with traumatic arthritis is denied. An effective date earlier than January 8, 2008, for the grant of service connection for a lumbar spine disability is denied. An earlier effective date of December 18, 2006, for the assignment of a 30 percent disability rating for residuals of a right ankle injury with traumatic arthritis is granted, subject to the law and regulations governing the payment of VA monetary benefits. An earlier effective date of January 8, 2008, for the award of TDIU is granted, subject to the law and regulations governing the payment of VA monetary benefits. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs