Citation Nr: 1327840 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 08-06 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a histoplasma granuloma, status post left lung lobectomy. 2. Entitlement to a disability rating in excess of 10 percent for arthritic changes of the bilateral great toes with hammertoes and bilateral heel spurs. 3. Entitlement to a disability rating in excess of 10 percent for a right foot neuroma. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1970 and from April 1971 to April 1988. He served in the Republic of Vietnam from June 1969 to June 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which continued a 10 percent evaluation for arthritic changes of the bilateral great toes with hammertoes, right foot neuroma, and bilateral heel spurs, and denied service connection for a histoplasma granuloma, status post left lung lobectomy. The Board Remanded the issues in November 2010. By a rating action dated in January 2012, a separate compensable (10 percent) rating was assigned for the right foot neuroma. Because the AMC did not assign the maximum disability rating possible or grant this separate evaluation for the entire appeals period, the appeal for a higher evaluation for the entire period on appeal remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed an NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The issues on appeal have been recharacterized to reflect this change. In August 2009, the Veteran presented sworn testimony during a Travel Board hearing in North Little Rock, Arkansas, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. As the Veteran is challenging the disability rating assigned for his bilateral foot disability, and the record raises assertions that he is unemployable because of this service-connected disability, the determination as to whether he is entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part and parcel of the determination of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). While the Board has jurisdiction over this matter, the claim for TDIU is remanded to the RO for further development, as discussed more fully below. The issues of entitlement to service connection for a histoplasma granuloma, status post left lung lobectomy, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's service-connected arthritic changes of the bilateral great toes with hammertoes and bilateral heel spurs have been manifested by X-ray evidence of degenerative changes, pain, stiffness, limitations in walking and standing, and a single hammer toe on each foot, without evidence of incapacitating episodes. 2. For the entire period on appeal, the symptoms of the Veteran's right foot neuroma have been manifested by an area of numbness and an asymptomatic right foot scar. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for service-connected arthritic changes of the bilateral great toes with hammertoes and bilateral heel spurs have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5010 (2012). 2. The criteria for a 10 percent disability rating, but not greater, have been met for neuroma of the right foot for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5279 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. 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 claim. 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). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in August 2006 of the criteria for establishing an increased rating for his service-connected bilateral foot disability, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in April 2007. Nothing more was required. VA's duty to assist has also been satisfied. The Veteran's service treatment records, VA treatment records, SSA records, and VA examination reports are in the file. No outstanding evidence has been identified that has not otherwise been obtained. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran with a VA examination for his feet most recently in December 2010. The examiner obtained a thorough history, including reviewing the claims file and medical records, and provided detailed a physical examination. Thus, the Board finds that the December 2010 examination is adequate for determining the disability rating for the Veteran's service-connected arthritic changes of the bilateral great toes with hammertoes, right foot neuroma, and bilateral heel spurs. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). There is no evidence indicating that there has been a material change in the severity of the Veteran's service-connected bilateral foot disability since he was last examined. 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. Thus, the Board finds that a new VA examination is not necessary at this time. Some discussion of the Veteran's August 2009 personal hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issues on appeal were identified. Information was also elicited from the Veteran concerning his contentions regarding his bilateral foot symptoms. Notably, the Veteran's testimony, in part, triggered the Board's decision to remand the matter to obtain an updated VA examination. The Board remanded the Veteran's bilateral foot claim in November 2010 further evidentiary development, including obtaining the Veteran's Social Security Administration (SSA) records and providing him with a new VA examination for his feet. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC obtained the Veteran's SSA records and provided him with a new VA podiatry examination in December 2010. Accordingly, all remand instructions issued by the Board have been substantially complied with and this matter is once again before the Board. 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 claim, 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). II. Merits of the Claim The Veteran's arthritic changes of the bilateral great toes with hammertoes, right foot neuroma, and bilateral heel spurs are currently evaluated as 10 percent disabling under Diagnostic Code 5010. Additionally, his right foot neuroma has received a separate 10 percent evaluation effective December 15, 2010 under Diagnostic Code 5279. He seeks higher ratings for the entire period on appeal. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to 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 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Diagnostic Code 5010, arthritis, due to trauma, as substantiated by x-ray findings is rated as degenerative arthritis (under Diagnostic Code 5003). 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Additionally, the evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59 (2012). Under Diagnostic Code 5279, a 10 percent evaluation is assigned for anterior metatarsalgia (Morton's disease), unilateral or bilateral. 38 C.F.R. § 4.71a, Diagnostic Code 5279 (2012). Morton neuralgia is "a form of foot pain...caused by compression of a branch of the plantar nerve...chronic compression may lead to the formation of a neuroma." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1281 (31st ed. 2007). The Veteran first underwent a VA examination in conjunction with his present claim in April 2007. At that time, he complained of intermittent symptoms with remissions, including left foot pain around the toes while walking and standing, left foot stiffness around the toes while standing and right foot pain from the ball of the foot to the toes (anterior and posterior) while walking, standing, and resting. He also endorsed right foot stiffness in the toe area while standing, walking, and at rest, fatigability of the ball of the right foot (anterior and posterior) while standing and walking, weakness of the right foot while standing and walking, lack of endurance of the toes and ball of the right foot while standing and walking, and numbness between the first and second toes of the right foot while standing, walking, and at rest. He denied any swelling, heat, redness, fatigability, weakness, lack of endurance, or other symptoms in the left foot. His symptoms were partially relieved with rest and the use of orthotics and completely relieved with elevation. The Veteran reported having undergone surgery in 2002 or 2003 to cut the nerve between his right great and second toes with partial relief of his foot symptoms and denied using any medications or applying any heat or cold. He also indicated that he was unable to wear hard sole shoes due to increased pain. He further indicated that he experienced flare ups weekly or more often, lasting one to two days, precipitated by walking or standing on hard surfaces for more than 30 to 45 minutes and alleviated by sitting down, taking his shoes off, and elevating his feet. He reported being limited in his ability to run any distance, walk more than a mile, and stand for more than 15 to 30 minutes. The examiner observed no objective evidence of painful motion, swelling, tenderness, instability, or weakness. There was also no evidence of abnormal weight bearing, skin or vascular foot abnormalities, malunion or nonunion of the tarsal or metatarsal bones or muscle atrophy of either foot, or other physical findings. The examiner diagnosed the Veteran with traumatic arthritis and concluded that his bilateral foot disability had severe effects on shopping, exercise, and recreation, moderate effects on chores and traveling, and mild effects on feeding, dressing, and driving. There was no adverse effect on toileting and grooming. Sports were precluded. The Veteran was more recently examined for his bilateral foot disability in December 2010. At that time, he complained of pain in his heels and the balls of his feet that was worse in the right foot than the left, stiffness in the midfoot area, and feeling as though his feet were swollen and cold. He indicated that his pain was throbbing at rest, lessened with walking, and worst when standing on hard surfaces or for extended periods. He also indicated that he could not tolerate hard sole shoes and that his feet go numb at rest. When he spends all day on his feet, he is unable to walk for two days after. He denied any weakness, visible swelling, or redness. He reported treating his bilateral foot disability with orthotics, which were somewhat helpful, and Advil as needed. He indicated that he had surgery to cut the nerve between two of his right foot toes in approximately 2000 with no pain relief. With regard to physical limitations, the Veteran reported that he could not squat or stand for more than a couple minutes and that he believed these physical limitations resulted in his current unemployment. The examiner observed palpable pedal pulses, diminished sensation to light touch in the right foot, intact sensation to light touch in the left foot, pain on palpation of the right heel, the second interspace of the right foot, and the metatarsal heads of the right foot, a fine scar over the second interspace of the right foot, a mild reducible bilateral fourth hammertoes, bilateral rigid adductovarus fifth toes, no pain on palpation or with range of motion of the toes, and active motion of the first metatarsophalangeal joints bilaterally. The examiner did not observe any callosities, breakdown, abnormal shoe wear, high arch, clawfoot, flat foot, or hallux valgus. X-rays showed degenerative changes in both feet. The evidence also includes statements from the Veteran and his wife reporting his bilateral foot pain and limited ability to walk and stand, particularly in certain shoes or on certain surfaces. VA treatment records reflect similar complaints. This evidence is consistent with the VA examiners' findings. Notably, a September 2006 VA treatment record indicates that the Veteran requested new orthotics, reporting that his previous orthotics had helped. On review, the Board finds that the totality of the evidence fails to support the assignment of a rating greater than 10 percent for the Veteran's service-connected arthritic changes of the bilateral great toes with hammertoes and bilateral heel spurs. The rating criteria do not provide a compensable evaluation for limitation of motion and the evidence does not show that the Veteran experiences any discernable loss of motion due to pain. Instead, the Veteran has been granted a 10 percent evaluation based on his reports of pain that limits function. Although the foot rating criteria do not provide a rating for limitation of motion, the Veteran could receive an increased rating of 20 percent for his bilateral foot arthritis if he also had occasional incapacitating episodes. There is no evidence that he has ever experienced an incapacitating episode. Without such evidence, an increased rating of 20 percent is not warranted under Diagnostic Code 5010. Although the Veteran cannot receive an increased rating under Diagnostic Code 5010, the Board finds that the separate 10 percent evaluation assigned under Diagnostic Code 5279 is warranted for the entire appeals period, not only from December 15, 2010 to the present. The Veteran underwent surgery to cut the nerve between the toes of his right foot. There is no indication that his symptoms relating to the right foot neuroma have changed throughout the appeals period or in December 2010. This separate 10 percent evaluation is the maximum schedular rating under Diagnostic Code 5279. There is no higher rating available under this diagnostic code. There is also no indication that the Veteran experiences any additional functional loss due to pain, weakness, fatigability, incoordination or pain on movement of a joint to warrant a higher rating. 38 C.F.R. §§ 4.40, 4.45 (2012); see also DeLuca, supra. Although the Veteran reported increased pain with increased standing or walking, this is considered already in the 10 percent evaluation that he has been awarded. There is no evidence that his increased pain with standing and walking or during a flare up results in additional limitation of motion to a degree in excess of 10 percent. The Board emphasizes that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Turning to other diagnostic codes related to the feet, the Board notes that the Veteran was diagnosed with hammer toe of the bilateral fourth toes by the December 2010 VA examiner. However, Diagnostic Code 5282 only provides a compensable evaluation for hammer toe when it affects all the toes of a foot, not a single toe. As such, a separate compensable evaluation cannot be assigned under Diagnostic Code 5282. 38 C.F.R. § 4.71a, Diagnostic Code 5282 (2012). A compensable rating may also be assigned for bilateral weak feet. Diagnostic Code 5277 sets forth that bilateral weak feet is a symptomatic condition secondary to many constitutional conditions such as atrophy of the musculature, disturbed circulation, and weakness. Here, while the Veteran demonstrates/endorses weakness of the feet, there is no evidence of symptoms akin to atrophy or disturbed circulation. Moreover, in assigning a 10 percent rating for pain, the assignment of a separate, compensable rating based weakness would amount to pyramiding. There is also no evidence that either foot disability results in disability analogous to a moderately severe or severe injury of the foot. The record clearly shows that the Veteran experiences painful feet on standing or walking for prolonged periods as well as on palpation. There is also evidence of degenerative changes in the feet and a painful neuroma. However, as indicated, there was no evidence of painful motion, swelling, tenderness, or instability. There was also no evidence of abnormal weight bearing, skin or vascular foot abnormalities, malunion or nonunion of the tarsal or metatarsal bones or muscle atrophy of either foot, or other physical findings. A higher rating under Diagnostic Code 5284 is not warranted. The Board has also reviewed the remaining diagnostic codes relating to the feet. However, the claims folder contains no medical evidence indicating that the Veteran's bilateral foot disability is manifested by pes planus (flat feet), claw foot, hallux valgus, hallux rigidus, or malunion or nonunion of the tarsal or metatarsal bones. There is also no evidence that the scar related to the surgical removal of the neuroma is a deep and nonlinear scar of at least 6 square inches, a superficial and nonlinear scar of at least 144 square inches, unstable, or painful (not to be confused area of numbness already being compensated). The scar causes no limitation of function. As such, an increased or separate rating cannot be assigned under Diagnostic Codes 5276, 5278, 5280, 5281, 5283, or 7801 to 7805. 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5278, 5280-5284; 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2012). There is also no evidence indicating that the severity of Veteran's bilateral foot disability has fluctuated throughout the appeals period to warrant staged ratings. Thus, the assignment of staged ratings is not appropriate. See Hart, supra. For all of the foregoing reasons, the Board finds that an evaluation in excess of 10 percent under Diagnostic Code 5010 is not warranted at any time during the appeals period and that a separate evaluation of 10 percent (but not higher) under Diagnostic Code 5279 is warranted for the entire period on appeal for the Veteran's bilateral foot disability. In reaching the above-stated conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to evaluations in excess of these for his bilateral foot disability, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims (Court) set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. With regard to the Veteran's service-connected arthritic changes of the bilateral great toes with hammertoes, right foot neuroma, and bilateral heel spurs, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for the Veteran's currently assigned 10 percent disability ratings contemplate his complaints of pain, numbness, and physical limitations. 38 C.F.R. §§ 4.40 and 4.45 adequately contemplate any functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of the joint. Further, even if the Veteran's arthritis did not result in compensable limited motion, 38 C.F.R. § 4.59 allows for the minimum compensable evaluation for his painful motion. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's service-connected arthritic changes of the bilateral great toes with hammertoes, right foot neuroma, and bilateral heel spurs presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). Thus, referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. (CONTINUED NEXT PAGE) ORDER Entitlement to a disability rating in excess of 10 percent for arthritic changes of the bilateral great toes with hammertoes and bilateral heel spurs under Diagnostic Code 5010 is denied. Entitlement to a disability rating of 10 percent for neuroma of the right foot under Diagnostic Code 5279 is granted for the entire period on appeal, subject to the laws and regulations governing the award of monetary benefits. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of his claims of entitlement to service connection for a histoplasma granuloma, status post left lung lobectomy, and TDIU. As noted above, in Rice v. Shinseki, the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. See Rice, supra. At the time of his December 2010 VA podiatry examination, the Veteran reported to the examiner that he lost his position as an instructor in the Army due to his foot disability and was currently unemployed. The issue of TDIU is raised by the record and it is properly before the Board. A review of the record shows that further development is needed to properly adjudicate the TDIU claim. The law provides that TDIU may be granted upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability or disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Despite the claim for TDIU raised by the December 2010 VA examination report, it does not appear that the Veteran has been afforded written notice of the information necessary to substantiate TDIU claim or the appropriate claim form. In order for the Veteran's TDIU to be fully and fairly adjudicated it is necessary that he have the opportunity to provide the information necessary to substantiate the claim. This must be done prior to the RO's consideration of the claim for total disability evaluation based on individual unemployability. With regard to the service connection claim, the Veteran contends that his current lung condition is the result of his active military service. Specifically, he asserts that he experienced breathing problems and chest pain and was exposed to jet fuel in service. He argues that these in-service symptoms or the in-service exposure may be related to his current lung condition. The Veteran was afforded a VA respiratory examination in December 2010. The examiner noted the Veteran's complaints of increased shortness of breath and ultimate diagnosis of a histoplasma granuloma. However, he did not opine on the etiology of his lung diagnosis, nor did he address a possible nexus between the Veteran's current lung condition and his military service, including in-service jet fuel exposure. In light of this deficiency, the December 2010 VA examiner's opinion is not sufficient to render a decision on the issue of service connection for a histoplasma granuloma, status post left lung lobectomy. See Barr, supra. As the Court explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claim of entitlement to service connection for a histoplasma granuloma, status post left lung lobectomy, must be remanded for an addendum opinion. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with the appropriate notice accompanied by the claims forms necessary to file and complete a TDIU claim. 2. Return the Veteran's claims file to the original December 2010 VA examiner, if possible, for an addendum opinion. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination, including the service treatment records showing multiple complaints of shortness of breath and chest pain. This must be noted in the examination report. If the original December 2010 examiner is unavailable, the Veteran's claims file should be provided to another appropriate examiner for review. The examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed histoplasma granuloma, status post left lung lobectomy, had its onset in service or is otherwise etiologically related to his active service, to include exposure to jet fuel. The examiner should specifically address the in-service complaints of shortness of breath and chest pain. The Veteran may be recalled for examination if deemed necessary. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above actions and any other notification or development deemed necessary, the Veteran's claim of entitlement to service connection for a histoplasma granuloma, status post left lung lobectomy, should be readjudicated. Thereafter, and after any other development that may be indicated by any response received as a consequence of the actions taken in the first paragraph above, such as a VA examination, if necessary, the claim of entitlement to TDIU should be adjudicated, including consideration of whether to submit the claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). If either of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, all issue(s) properly on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2012). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs