Citation Nr: 1324058 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 07-15 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for physical adversity to heat (claimed as problems in the heat and/or difficulty in temperatures over 70 degrees). 2. Entitlement to an initial disability rating greater than 10 percent for service-connected residuals of a right foot fracture, to include on a schedular and extraschedular basis. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1972 to June 1975. This matter is before the Board of Veterans' Appeals (the Board) on appeal from October 2006 and March 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). All issues were previously remanded by the Board in October 2011 for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service-connection claim In the above-referenced March 2011 rating decision, the RO denied the Veteran's service-connection claim for 'physical adversity to heat.' The Veteran filed a timely notice of disagreement with this denial in June 2011 and a substantive appeal in December 2011. The issue was remanded for issues related to due process in October 2011. Initial rating claim In the above-referenced October 2006 rating decision, the RO awarded the Veteran service connection for residuals of a right foot fracture, and assigned an initial 10 percent rating, effective February 10, 2006. The Veteran disagreed with the RO's assigned initial rating, and perfected an appeal as to that issue. In March 2009, the Board denied the Veteran's claim for an initial rating in excess of 10 percent for his right foot fracture residuals. The Veteran appealed the Board's March 2009 decision to the United States Court of Appeals for Veterans Claims (the Court), which in March 2011, issued a Memorandum Decision vacating the Board's denial of the Veteran's initial rating claim. The Veteran's claims folder was returned to the Board for additional appellate review, and remanded in October 2011. TDIU claim In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU due to service-connected disability or disabilities is part and parcel of an initial or increased rating claim when such claim is raised by the record. As discussed in further detail in the body of the decision, the Board considered the issue of TDIU. FINDINGS OF FACT 1. The competent and probative evidence of record does not associate the Veteran's currently diagnosed heat intolerance to his military service or to a service-connected disability. 2. The Veteran's service-connected residuals of a right foot fracture is manifested by no more than subjective complaints of pain, weakness, lack of endurance and incoordination with objective evidence of fatigue; there is no objective evidence of limitation of motion, incoordination or the requirement of the use of assistive aids for walking. 3. The Veteran is service-connected for status post right foot fracture at 10 percent disabling, and tinnitus at 10 percent disabling. He has a combined 20 percent rating. 4. The competent and probative evidence of record does not support a finding that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. A disability manifested by physical adversity to heat was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for an initial evaluation in excess of 10 percent for residuals of a right foot fracture have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2012). 3. The criteria for a total disability rating based on individual unemployability due to service-connected disabilities are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in October 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records, post-service private treatment, and Social Security Administration disability records have been associated with the claims file. All identified and available treatment records have been secured. The Board finds that VA has fulfilled its duty to assist in obtaining such records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claims, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran was afforded a VA examination in September 2012 addressing his claims for a higher evaluation for his service-connected foot disability as well as his claim for TDIU. This examination report, combined with the remainder of the evidence of record, contains sufficient findings to rate his foot disability under the appropriate diagnostic criteria and addresses the Veteran's employability. Similarly, a VA opinion was obtained in October 2012 addressing his claimed heat intolerance. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, the Board will proceed to a decision on the merits as to the issues on appeal. Claim for Service Connection for a Disorder Manifested by a Physical Adversity to Heat A. Relevant law and regulations Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a non service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that 'a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail.' To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. B. Factual Background Service treatment records are negative for any complaints or diagnoses related to heat exposure. In a July 1973 admission note, the Veteran complained of headache, vomiting, and fever. The admitting diagnosis was viral enteritis and discharge diagnosis was tonsillitis. In an April 1975 separation report of medical history, the Veteran denied frequent or severe headaches, dizziness or fainting, or ear, nose or throat trouble. The Veteran denied trouble with car, train, sea or air sickness upon enlistment, and reported trouble with helicopter sickness upon separation. In a medical report submitted by the Veteran dated in November 1989, a study was done observing ten prior heat stroke patients for heat acclimation ability, heat tolerance response, fluid-electrolyte balance, thermoregulation, and blood values. It was concluded that sleep loss and generalized fatigue were the most common predisposing factors, recovery from exertional heatstroke was idiosyncratic and may require up to one years, no patience were hereditarily heat intolerance prior to exertional heatstroke, no measured variable predicted recovery from exertional heatstroke or heat acclimation response, heat intolerance occurs in a small percentage of prior heatstroke patients, and may be transient or prolonged. In a June 2002 medical examination report for commercial driver fitness determination, the Veteran denied daytime sleepiness, head injury/disorder/illnesses, and fainting and dizziness. In an April 2012 letter, M. B., M.D., reported that the Veteran shows signs and symptoms of disability including heat intolerance, easy fatigue, and difficulty with thermal regulation. The examiner stated he reviewed the medical files that were provided and determined that the Veteran most likely had spinal meningitis or other significant viral illness producing a high fever. The examiner based this on the fact that the Veteran was treated for a throat infection and with antibiotics throughout the hospitalization and his discharge records show a discharge diagnosis of tonsillitis. Tonsillitis on discharge is questioned secondary to the fact that a throat culture was negative, blood cultures were negative, chest x-ray was negative, CBC was negative and yet fevers were extremely high- greater than 103 and difficult to control. No spinal tap was done to verify whether or not the Veteran suffered from a form of meningitis at the time of his illness. Historical data would show that would be reasonable diagnosis for the presenting symptomatology and fevers. At one point, the physician wrote: "It is my professional opinion that this there [sic] is a 51% change or greater [sic] the current disability is related to this Veteran's illness that he suffered while actively engaged in military service." However, the physician later wrote: "I believe veteran [sic] should be considered with at least [] 51% [sic] chance that his protracted illness with elevated temperature may have caused his current disability and difficulty with thermal regulation and heat intolerance." During an April 2012 medical examination for a Social Security Administration disability claim, the Veteran reported he had meningitis and was hospitalized while in service, and has since that time had severe heat intolerance, for anything over 60 degrees he being experiencing mental status changes. The examiner found that in regards to his heat intolerance, he should not be working in the heat. During an October 2012 VA examination, the Veteran complained of heat intolerance over the years, but no history of fainting. He claimed he stays indoors most of the time when it is more than 70 degrees outside. He complained of being lightheaded, but that he has never been treated for heat intolerance. He went 30 years, and did labor intensive work and never saw a physician, except in 1994, for heat problems. The Veteran claimed his heat exposure was incurred in or caused by military service with hospitalization that occurred in July 1972. The examiner determined that it is less likely than not that this Veteran suffers from residuals due to heat exposure that was incurred in or caused by military service with hospitalization in July 1972. The Veteran was hospitalized in service with complaints of headache, chills, fever, and sore throat. All labs were reported as within normal limits. The admitting diagnosis was viral illness, the discharge diagnosis was tonsillitis. The Veteran was without complications by medical records. The examiner noted that there was no demonstrable evidence in the medical literature to support a viral illness or tonsillitis is linked to longer term heat intolerance problems. In statements dated in October 2012 and January 2013, the Veteran asserted that since his hospitalization in service, he has had problems with heat intolerance, headaches, fatigue, and middle ear problems. C. Analysis Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that service connection for a physical adversity to heat, to include as due to in-service viral illness, is not warranted on any basis. The Board finds that the September 2012 VA opinion and October 2012 addendum are considered more probative and definitive, based upon a complete review of the claims file, and findings in prior evaluation of the Veteran, and the examiner provided a detailed rationale for the conclusions reached. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the opinions are found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In contrast, the Board acknowledges the April 2012 letter from a private physician indicating that the Veteran's in-service illness and elevated temperature caused his current disability and difficulty with thermal regulation and heat intolerance. The Board has the authority to 'discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.' See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). The Board notes that in evaluating the probative value of competent medical opinion evidence, the Court has stated in pertinent part: 'The probative value of medical 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 that the physician reaches...As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator...' See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board finds the opinion of M.B., M.D., noting a disorder manifested by heat intolerance incurred during active service to be of less probative value than the opinion proffered by the VA examiner. Crucially, M. B., M.D., failed to provide a rationale in the private treatment records as to why a diagnosis of meningitis would have been a reasonable diagnosis for the presenting symptomatology and fevers given the lack of specific testing. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. Furthermore, the opinion itself is inconsistent. On the first page, the examiner finds that there is a 51 percent chance that the current disability is related to the Veteran's illness that he suffered while on active duty, and yet on the second page, the physician gives only a speculative opinion stating that there is a 51 percent chance that his protracted illness "may have" caused his current disability. In contrast, as discussed above, the October 2012 VA examiner specifically provided a definitive opinion and rationale as to why service connection for heat intolerance was not supported by the record, which included findings from an examination of the Veteran and consideration of his medical history. Accordingly, the Board finds the opinion of M. B., M.D., to be of less probative value in determining whether the Veteran currently suffers from heat intolerance due to or incurred in active service. With regards to chronicity, for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, No. 2011-7184, slip op. at 13-14 (Fed. Cir. Feb. 21, 2013) (overruling Savage v. Gover, 10 Vet. App. 488 (1997)). In this context, given that a disorder manifested by heat intolerance is not specifically listed as chronic diseases in 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) do not apply to the Veteran's claim. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). As for the Veteran's claim, a medical nexus of a relationship between the condition and service is required. Walker v. Shinseki, supra. In this case, there is no dispute that the Veteran is competent to describe symptoms related to a heat tolerance disorder because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination 'medical in nature' and is capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (stating that '[S]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.'). To the extent that the Veteran contends that a medical relationship exists between his current disability and service, the Board again acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's heat intolerance disorder and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board observes that lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person (e.g. any evidence not requiring that the proponent has specialized education, training, or experience). 38 C.F.R. § 3.159(a)(2). As such, the Veteran can competently testify about symptoms he experienced in service. However, competency must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the present case, the Board finds that the Veteran contention that his symptoms of heat-related problems including fatigue and headaches began after his in-service hospitalization is not credible. The Veteran's recent statements concerning the onset of his heat-related problems including fatigue and headaches are at odds with contemporaneous service records to include separation examination. Though the Veteran complained of headache and fatigue in July 1973, there were no complaints in the remaining two years of active duty service. As the Veteran sought treatment for other ailments such as a sore throat, so the Board finds it reasonable that if the Veteran was experiencing ongoing headaches and fatigue, he would have sought medical attention. As such, the Veteran's statements are concerning the onset of his heat-related problems including fatigue and headaches lacks credibility and probative value. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. In light of the foregoing, the Board must conclude that the weight of the evidence is against a finding that the Veteran's current physical adversity to heat disability is etiologically related to service. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Claim for an Increased Disability Rating for the Right Foot A. Relevant law and regulations Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against an adverse decision based upon a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Also, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail. The Court has also stated, 'It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.' Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran is service connected at the 10 percent disability level for right foot disability under Diagnostic Code 5284. Under Diagnostic Code 5284, a 10 percent disability rating is warranted for moderate foot injury; a 20 percent disability rating is warranted for moderately severe foot injury; a 30 percent disability rating is warranted for severe foot injury; and a maximum 40 percent disability rating is warranted when there is actual loss of use of the foot. 38 C.F.R. § 4.71a. Normal ranges of motion of the ankle are as follows: Dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The terms 'mild,' 'moderate' and 'severe' are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are 'equitable and just.' 38 C.F.R. § 4.6. VA General Counsel opinion VAOPGCPREC 9-98 provides that some foot disorders rated under Diagnostic Code 5284 may affect range of motion and, therefore, warrant consideration of the provisions of 38 C.F.R. § 4.40, 4.45 and 4.59. B. Factual Background He contends that he is entitled to a higher evaluation due to pain, fatigue, lack of endurance, weakness and incoordination. Service treatment records indicate the Veteran fractured his 2, 3, and 4 metatarsals of the right foot, with no nerve or artery involvement in July 1974. In an April 1975 service treatment record, the Veteran reported right foot pain due to old fracture. In an April 1975 separation report of medical history, the Veteran denied foot trouble, and during an April 1975 separation examination the feet were marked as normal. Private treatment records dated from February to December 1993 indicate the Veteran had a right knee injury which resulted in arthroscopic surgery. A June 2002 medical examination report for commercial driver fitness determination was normal for missing or impaired foot. In an April 2006 private treatment records, the Veteran was scheduled for a Department of Transportation (DOT) physical. The Veteran reported "I can't pass it because of my knee." The Veteran indicated his initial injury was while in the military in 1974, where he had a severe right knee fracture. He has not seen an orthopedic specialist or anybody since about the mid-1990s. He reported that in 2003 he was driving a truck and somebody pulled in front of him. He claimed he could not "generate enough braking pressure" because of weakness in the right knee. He could not stop and rear-ended somebody. He does not feel that he should drive and does not have the strength to operate a truck. He had no other complaints or concerns. Upon physical examination, the Veteran had some decreased leg strength with extension and flexion about the knee on the right versus the left, and decreased strength with plantar flexion. The examiner noted he was somewhat concerned about his effort. The examiner indicated that he did not clear him to drive because of right lower extremity weakness, related to probable chronic old knee injury. An April 2006 medical examination report for commercial driver fitness determination indicated the Veteran does not meet standards until he gets evaluation and treatment for right knee. The Veteran reported a right knee fracture and injury in 1974 and that his right lower extremity prevents him from braking appropriately and has led to a motor vehicle accident. He does not have the strength to drive a truck. Upon physical examination, the examiner noted that pain with flexion/extension about the knee and decreased strength with plantar flexion of the right foot. During an October 2006 VA examination, the Veteran reported he was hospitalized for a fall while in service. He did not undergo surgery, but he was casted. The examiner noted the Veteran does not use assistive aids for walking, he has no incapacitating episodes, he is able to stand up to one hour, and is able to walk a quarter of a mile. Upon physical examination, there was no evidence of abnormal weight bearing. Active motion was to 20 degrees with no additional loss of motion on repetitive use. The examiner noted that he Veteran fractured the 2, 3, and 4 metatarsal of his right foot while in-service. He has had chronic pain in the foot since the original date of injury. The pain is exacerbated by weight bearing activities. He used an orthotic insert for arch support. He occasionally takes Aleve with moderate improvement of pain. He held a position as a truck driver for several years, but was recently forced into retirement. His primary care provider did not allow him to pass his Department of Transportation physical due to strength limitation in his right ankle. He was unable to plantar flex with enough strength to depress a brake pedal. He is no longer working. The Veteran reported limitation in activities of daily living and recreational activities due to pain experienced with repetitive use including walking and standing. During a January 2007 VA examination, the Veteran reported he injured his right foot in service and has had a long history of foot problems since. He reported instability of his right foot and pain, stiffness, and weakness of his right foot. He also reported episodes of swelling of his right foot and a burning sensation and warmth. Upon examination, the examiner noted he ambulated with normal smooth gait. His right foot revealed no deformity, no swelling, and normal mid-foot kinetics. The diagnosis was healed, second, third, and fourth metatarsal fractures. In a March 2007 VA progress note, the Veteran reported he takes no medication, but will occasionally use over-the-counter Aleve to relieve knee, low back, or foot pain. The diagnosis was post-traumatic osteoarthritis of the right foot. In an April 2011 VA telephone triage note, the Veteran called to schedule an appointment. He stated he suffered a crush injury in the foot in service and now his right foot is bothering him more and he not been able to pass the physical to drive truck because he cannot put enough pressure on the brakes. He said that top of his foot hurts and is like a stabbing pain regardless of activity. He has some swelling, but no redness. He complained it is hard to walk. He was here for therapy and it helped with back and hip tremendously. He does not like pain medication and is inquiring about therapy for his foot. In a May 2011 VA progress note, the Veteran was referred for physical therapy for right foot pain. He noted ongoing pain since 2005 and described it as tingling/numbness. He noted increased symptoms with lying supine or sitting. He is able to ride his bike with no restrictions, but has increased foot pain with walking with an external rotation pattern of the right foot. He is able to ambulate a couple of blocks prior to increased right foot pain and low back pain. He failed his commercial driver's license physical due to weakness of the right foot with plantar flexion. He was in a motor vehicle accident two years ago due to numbness/weakness of the right foot. Upon physical examination, there was no tenderness to palpation of the right foot, no pain at rest, plantar flexion was 4/5 and dorsiflexion was 4+/5. He had good pedal pulses bilaterally, and was normal to light touch sensation of the right foot. The examiner noted the Veteran had weakness of right hip flexion, knee flexion, and dorsiflexion less than plantar flexion. In a June 2011 statement, the Veteran claimed that his right foot disability is causing him additional disability. He has sharp pain and numbness in the foot. He also has a limp and right foot angulation. During an April 2012 medical examination for a Social Security Administration disability claim, the Veteran reported that while he was in the military he injured his right foot in 1974 and broke his second through fourth metatarsals in a fall. He was casted for six weeks. Ever since then, he has had problems with his right foot. He specifically externally rotates his right foot when he walks and walking with his foot in a straight alignment with his body actually bothers him. He has constant pain. He reported numbness in his right forefoot that radiates up to this right knee, which also causes him pain. He claimed he has some reduced movement in his right foot with regards to plantar and dorsiflexion. He can stand for 20 minutes, and walk a block. He can ride a bicycle. He reported he does not like to drive because he does not have the right lower extremity strength to step on the brake or push the gas. Upon physical examination, the examiner noted his ambulation and gait were complicated by externally rotating his right foot. He used no assistive devices. He had 10 degrees of right plantar flexion and 20 degrees of dorsiflexion, normal on the left. Sensation was diminished over the right lateral lower leg subjectively, but objectively was normal. Strength was 4/5 in the right lower extremity at the L4-L5-S1 nerve distribution. The examiner found the Veteran was likely experiencing a large amount of pain due to his abnormal gait that needs realignment. He continues to have pain when he externally rotates his feet. He was not weak at the L4-L5-S1 distributions, and he had no numbness or tingling in that dermatomal pattern to suggest a radiculopathy. He likely has some osteoarthritis in his back, hip, knee, and foot which would prevent him from being on his feet for longer periods of time. He likely should not be driving because of weakness in the right foot and this would affect his ability to step on the gas or push on the brake. During a September 2012 VA examination, the diagnosis was right foot metatarsals fractures, healed. The examiner noted the Veteran had fractured 2nd, 3rd, and 4th right foot metatarsals with some chronic foot pain. The examination was negative for Morton's neuroma, hammertoes, hallux valgus, hallux rigidus, acquired claw foot, malunion or nonunion of tarsal or metatarsal bones, other foot injuries, bilateral weak foot, or scars. The examination was positive for metatarsalgia on the right. The Veteran does not use assistive devices, and there was no functional impairment of the extremity such that no effective function remains other than that which would be equally well served by amputation. Imaging studies found degenerative or traumatic arthritis of both feet. The examiner noted that his foot condition impacts his ability to work as he is on Social Security disability. The examiner noted that the Veteran wears inserts and rigid boots. Full range of motion studies of the right foot and functional limitations caused by pain, flare-ups of pain, weakness, fatigability, and incoordination were normal upon examination. There was no functional disability of the right foot on examination. The right foot has minimal impact on daily activities. The Veteran is capable of gainful employment at the sedentary job classification with no significant disabling foot condition of either foot. C. Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for right foot disability. Neither the lay nor the medical evidence more nearly reflects evidence of moderately severe foot disability, the criteria for a higher disability evaluation. 38 C.F.R. § 4.7. Also, a higher evaluation is not warranted under any other provision of the rating schedule. The lay and the medical evidence reflect that the Veteran's right foot disability is manifested by flare-ups of pain due to walking or ambulation. The Board finds that moderately severe impairment is not shown because the Veteran has significantly retained function of his right foot. There are no complaints or findings for impaired propulsion, strength, or coordination. The Veteran does not use a cane or other assistive device for ambulation. Although there is lay evidence of altered gait, the Veteran reported he could walk up to 1/4 mile, that he did not require regular medical care, and that he had some pain relief with his regular use of orthotic shoe inserts and analgesics on an as needed basis. To the extent that the Veteran has pain and limited foot function due pain along with some interference with activities and work due to foot pain, the Board finds that the current 10 percent disability evaluation contemplates these factors. See DeLuca, supra. Additionally, a higher evaluation is not warranted under any other potentially applicable provision of the rating schedule. Other provisions relating to the foot are Diagnostic Code 5277 (bilateral weak foot); Diagnostic Code 5278 (clawfoot); Diagnostic Code 5279 (anterior metatarsalgia); and Diagnostic Code 5280 (unilateral hallux valgus); Diagnostic Code 5281 (unilateral, severe, hallux rigidus); Diagnostic Code 5282 (hammer toe); and Diagnostic Code 5283 (malunion or nonunion of tarsal or metatarsal bones). As these conditions are not shown on any examinations, these Diagnostic Codes are not for application and do not provide a basis for increase. 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5283. While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for an evaluation in excess of 10 percent, as explained and discussed above. Based upon the guidance of the Court in Hart, 21 Vet. App. 505 (2007), the Board has considered whether staged ratings are appropriate; however, in the present case, no staged ratings are warranted by the Veteran's symptomatology. The Board has considered the issue of whether the Veteran's right foot disorder standing alone, present an exceptional or unusual disability picture, as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111, 115-116. First, the threshold factor for extra-schedular consideration is that 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. at 115. However, if not adequately contemplated by the rating criteria, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 116. See also 38 C.F.R. § 3.321(b)(1). If either of the factors of step two is 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. at 116. In this case, because the rating criteria reasonably describe the claimant's disability level and symptomatology, the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is adequate. The Veteran has asserted that this right foot disability has caused marked interference with employment as shown by his April 2006 DOT physical. However, the Board notes that the physical is not persuasive as to an objective showing of marked interference with employment. During the April 2006 private evaluation, the Veteran specifically reported "I can't pass it because of my knee." He did not report his right foot interfered with employability. Furthermore, though the examiner noted the Veteran had some decreased strength with plantar flexion; the examiner questioned the Veteran's perceived effort. As the credibility of the physical examination was questioned, the Board finds the private examination and associated April 2006 medical examination report for commercial driver fitness determination indicating the Veteran does not meet standards holds little probative value. Similarly, the April 2012 medical examination for a Social Security Administration disability claim is also not persuasive. The Veteran claimed that ever since his injury in service, he has had problems with his right foot. Though this is clearly contradicted by his separation physical examination, April 2002 June 2002 medical examination report for commercial driver fitness, and the fact that the Veteran drove a truck for nearly 30 years without ever having been evaluated for any right foot problems. Inasmuch as the April 2012 opinion is based on an inaccurate factual predicate, it is afforded no probative weight. Review of the medical evidence record does not show that any physician or health care provider has otherwise indicated the Veteran's right foot disorder, alone, has created a marked interference with employment. There is no evidence in the medical records of marked interference with employability, no required hospitalization as a result of his right foot disorder, no other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate 'when there is present any impairment of mind or body 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), 4.15 (2012). 'Substantially gainful employment' is that employment 'which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.' Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). 'Marginal employment shall not be considered substantially gainful employment.' 38 C.F.R. § 4.16(a) (2012). A claim for a total disability rating based upon individual unemployability 'presupposes that the rating for the (service-connected) condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider.' See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an 'objective' one based on the average industrial impairment or a 'subjective' one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that 'unemployability' is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). A total disability rating for compensation may be assigned, where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In this case, the Veteran is service-connected for status post right foot fracture at 10 percent disabling, and tinnitus at 10 percent disabling. He has a combined evaluation of 20 percent. Thus, he does not meet the basic percentage requirements for eligibility for consideration for the grant of TDIU under 38 C.F.R. § 4.16(a). However, where the percentage requirements set forth above are not met, entitlement to the benefit on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities. See 38 C.F.R. § 4.16(b) (2012). Unlike the criteria for an extraschedular rating under 38 C.F.R. § 3.321, the grant of an extraschedular rating for TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC. 6-96 (1996). This means that the Board should take into account the veteran's specific circumstances including his disability, education, and employment history when determining if he is unable to work. As noted previously, the April 2006 DOT physical and April 2012 medical examination for a Social Security Administration disability claim are not persuasive. The September 2012 VA examiner indicated that the Veteran was not unemployable due to solely to his foot disorder, and that he was capable of sedentary work. The Board notes that the Veteran is in receipt of Social Security Administration disability for osteoarthrosis and allied disorders. The evidence does not show that entitlement to a TDIU on an extraschedular basis is warranted. First and foremost, although the Veteran reported that his right foot disorder has affected his employment, the Veteran has since then declared that his right knee is what impedes his ability to pass the physical for a commercial driver's license. Furthermore, the September 2012 VA examiner specifically found that the Veteran's right foot disability did not preclude him from employment. The Veteran has not asserted, and the evidence does not show, that his tinnitus affects his employability. The Board finds that preponderance of the evidence shows that the Veteran is not unemployable due solely to his service-connected disabilities. While the evidence clearly shows that the Veteran's service-connected disabilities have a significant impact on his employment, the evidence suggests that he would be able to maintain sedentary employment. Based upon a review of all of the evidence, and for reasons articulated above, the Board finds the evidence does not show that the Veteran's service-connected disabilities are of such severity as to preclude his participation in all forms of substantially gainful employment for which he is qualified. Entitlement to a TDIU on an extraschedular basis is not warranted. ORDER Entitlement to service connection for physical adversity to heat (claimed as problems in the heat and/or difficulty in temperatures over 70 degrees) is denied. Entitlement to an initial disability rating greater than 10 percent for service-connected residuals of a right foot fracture, to include on a schedular and extraschedular basis is denied. Entitlement to a TDIU is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs