Citation Nr: 1329489 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 06-27 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD) for the period beginning January 19, 2006. 2. Entitlement to an initial increased rating for service- connected left ankle arthrodesis with residual ankylosis, hypesthesia and weakness left calf (previously evaluated as chronic strain left ankle, status post surgery with degenerative joint disease), evaluated as 10 percent disabling prior to October 14, 2009, and 30 percent disabling for the period beginning February 1, 2010. 3. Entitlement to an initial increased rating for service- connected migraine headaches, evaluated as 10 percent disabling prior to February 12, 2013, and 30 percent disabling for the period beginning February 12, 2013. 4. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU), prior to October 1, 2006. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from August 2001 to June 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In accordance with the Board's November 2012 decision, in a November 2012 rating decision, the RO granted an increased rating of 50 percent for service-connected PTSD, effective July 1, 2005, and an increased rating of 70 percent, effective January 19, 2006. Likewise, in a July 2013 rating decision, the RO granted an increased rating of 30 percent for service-connected migraine headaches, effective February 15, 2013. The issues of an initial increased rating for migraine headaches and PTSD remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In September 2008, December 2009, August 2011 and November 2012, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. For the period beginning January 19, 2006, the Veteran's PTSD was manifested by deficiencies in most of the areas of work, school, family relations, judgment, thinking and mood, without total social and occupational impairment. 2. Prior to October 14, 2009, the Veteran's left ankle disability was manifested by marked limitation of motion, with consideration of pain and associated functional impairment; there was no ankylosis or deformity of the ankle. 3. For the period beginning February 1, 2010, the Veteran's left ankle disability most nearly approximates ankylosis in dorsiflexion, between 0 degrees and 10 degrees; there is no deformity of the ankle. 4. Prior to February 12, 2013, the Veteran's migraine headaches occurred on a monthly and sometimes weekly basis; however, they were not manifest by characteristic prostrating attacks occurring on an average of once a month over the last several months. 5. For the period beginning February 12, 2013, the Veteran's migraine headaches have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 6. Prior to October 1, 2006, the Veteran's service- connected disabilities did not preclude him from obtaining or maintaining substantially gainful employment consistent with his education and occupational background. CONCLUSIONS OF LAW 1. For the period beginning January 19, 2006, the criteria for an initial disability rating in excess of 70 percent for PTSD, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a 20 percent disability rating, but no higher, for a left ankle disability, for the period prior to October 14, 2009, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5270 and 5271 (2012). 3. The criteria for an initial disability rating in excess of 30 percent for a left ankle disability for the period beginning February 1, 2010, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5270 (2012). 4. The criteria for an initial disability rating in excess of 10 percent for migraine headaches, prior to February 12, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2012). 5. The criteria for a 50 percent disability rating, but no higher, for migraine headaches, for the period beginning February 12, 2013, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2012). 6. Prior to October 1, 2006, the criteria for the assignment of a TDIU, due to service-connected disabilities, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The appeal arises from disagreement with initial ratings following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation or evidence of prejudice. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103S; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA and private treatment records. Additionally, the Veteran was provided VA examinations in November 2005, December 2006, March 2010, October 2010 and February 2013 for his PTSD, left ankle disability and migraine headaches. There is no evidence or contention that there has been a change in any of the disabilities since the last examinations in October 2010 and February 2013. The Board remanded the left ankle disability and migraine headache claims in November 2012 to afford the Veteran new VA examinations. The Veteran was afforded new VA examinations in February 2013, as noted above, and the examinations provided the information requested in the remand. The Board also remanded the claims to obtain Social Security Administration records. The RO attempted to obtain the SSA records, but they have been determined to be unavailable. See May 2013 Formal Finding on the Unavailability of SSA Records. The remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson, 12 Vet. App. at 126. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). PTSD A 30 percent rating is warranted for PTSD if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted for PTSD if it is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Codes 9411. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is based on a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). Scores ranging from 31 to 40 reflect "Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school)." Id. A score of 41 to 50 is indicated where there are "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 51-60 is appropriate where there are, "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. A score of 61-70 is indicated when there are, "Some mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." Id. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2007) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. Analysis The evidence of record does not show that the Veteran has total occupational and social impairment due to his service- connected PTSD. In this regard, the Veteran reported as recently as his VA examination in October 2010 that he had a good relationship with his parents, whom he lived with, and his 15-year old daughter from his previous marriage. He did report problems in his marriage of seven years 2001-2008), however, he claimed that the problems were due to financial problems, not his PTSD. Furthermore, the evidence does not show that the Veteran reported or was found to be totally socially impaired due to his PTSD prior to the October 2010 VA examination. There is no other evidence of record, VA or private, showing that Veteran has total social impairment as well as total occupational impairment from his PTSD. Accordingly, a rating in excess of 70 percent from January 19, 2006 is not warranted. The Board also notes that neither the Veteran nor his representative have indicated in the July 2013 Hearing Memorandum that the Veteran believes he is entitled to a rating in excess of 70 percent from January 19, 2006, for his service-connected PTSD. Migraine Headaches Under Diagnostic Code 8100, a rating of 30 percent is warranted for characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating, the maximum schedular rating available, is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). Period prior to February 12, 2013 On VA examination in November 2005, the Veteran complained of headaches for two years. He claimed that the used to have a headache almost every morning, but at that time, he was getting them about 3-4 times per month. He also complained of nausea, and sensitivity to light and sound. He reported treating his headaches with Motrin. He also reported that he was able to do regular activities during a migraine. The examiner's diagnosis was migraine headaches. In a January 2006 rating decision, the RO granted service connection for migraine headaches. A noncompensable evaluation was assigned, effective July 1, 2005. In his February 2006 notice of disagreement, the Veteran argued that a higher rating was warranted because he took medication daily for his headaches. In an August 2006 rating decision, the RO granted an increased rating of 10 percent, effective July 1, 2005, for the service-connected migraine headaches, based on evidence of continued problems with headaches and continuous use of medication. Private treatment records from Purcell Municipal Hospital dated in August 2006 show that the Veteran reported continued problems with intractable migraine headaches, which were persistent, and occurred on average about 1-2 times per week. VA outpatient treatment records show that during a follow-up appointment for headaches in December 2008, the Veteran reported an onset of headaches in November 2007. He reported that his headaches had improved, with decreased frequency. He was still using Imitrex injections for severe headaches, once or twice a week, with a good response. His compliance with Divalproex was questioned. In January 2009, he was treated in the emergency room for severe headache pain at a level of 9/10, with slight nausea and vomiting. He was treated at that time with infusion of magnesium sulfate. In February 2009, he complained of chronic headaches, constant, at a level of 5/10, left-sided, aggravated by light and sound, relieved by heat. He was taking Lodine, Soma, and Imitrex, as needed. He denied any nausea, vomiting, vision changes, fever, or malaise. In June 2009, it was noted that the residuals of the Veteran's traumatic brain injury, including headaches, insomnia and memory problems, were all improving. The Veteran reported that overall, his headaches were of the same frequency, and still required him to take Imitrex about 1-2 times a month, which reduced his headaches from a 10 to an 8, but he was functional with a level 8 headache. He also reported that he believed Depakote was still helpful. In December 2009, the Veteran denied having headaches. The Veteran was afforded another VA examination in March 2010. He reported migraine headaches for many years, which were very severe, averaging a 9 or 10 on a 10 out of 10 scale, and included an aura of seeing shadows or hearing voices or noises prior to the onset of a headache, and blurred vision bilaterally and a sensation in the eyes as if the eyes were lagging behind in the movement as compared to his head movement. He reported that the headaches occurred approximately twice per month and that they were prostrating. He denied any nausea, vomiting, hematemesis, diarrhea, or other GI symptoms with the headaches. In April 2010, the Veteran was seen for treatment to alleviate headache pain in the emergency room with ketorolac and compazine IV, which had good results. He reported that he usually took Baclofen, Imitrex and Propranolol, but he'd had no relief with those medications during the previous two days. During a follow-up appointment in May 2010, the Veteran presented with chronic headaches, constant 5/10, left-sided, aggravated by light and sound, relieved by heat. He reported that he was taking Lodine, Soma, and Imitrex as needed. The Veteran also reported a decrease in the frequency of severe headaches with some response to Imitrex. The plan was to continue with Imitrex and discontinue Divalproex since its benefit was questionable. He was diagnosed with climactic migraines. The competent medical evidence of record noted above, including VA treatment records, private treatment records and reports of VA examinations in November 2005 and March 2010, has been reviewed, and does not show that the Veteran suffered from characteristic prostrating attacks occurring on an average of once a month over the last several months during this period. In this regard, the Veteran complained of chronic and severe headaches that occurred on a monthly and sometimes weekly basis. Furthermore, the evidence shows that he was treated with numerous medications, including Imitrex injections, Divalproex, Lodine, Soma, Baclofen, Propranolol, Topamax, and Depakote. However, the Veteran only reported prostrating attacks during his VA examination in March 2010. In fact, in December 2008, the Veteran reported that his headaches were improving, and in June 2009 and May 2010, he reported that the frequency of his headaches had decreased. He also denied having headaches in December 2009. The Board also notes that the only documented evidence of any prostrating attacks were the noted emergency room visits for treatment of headache pain in January 2009 and April 2010, which occurred almost a year apart. As such, the Board finds that a rating in excess of 10 percent is not warranted prior to February 15, 2013. See 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2012). The Board has also considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath v. Derwinski¸ 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability evaluation for the disability at issue, for this period. Outpatient treatment records from the VA Medical Center in Oklahoma City, Oklahoma dated from October 2008 to February 2011 have also been reviewed. These records also do not show that the Veteran meets the criteria for a disability rating in excess of 10 percent under any applicable diagnostic code at any time during this period. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence submitted by the Veteran in the form of his correspondence to VA and his statements to the VA examiners. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran complete competence and credibility in reporting his symptoms and the impact of those symptoms on his daily activities, nothing in the lay evidence shows his disability picture more closely approximated the schedular criteria for a rating in excess of 10 percent during this period. Period beginning February 12, 2013 As noted above, in order to receive a 50 percent raring under Diagnostic Code 8100, there must be evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). During his most recent VA examination in February 2013, the Veteran reported that his headaches occurred approximately twice per week and lasted for one day. He claimed to have prostrating attacks of headache pain more than once per month. He also claimed that he took Imitrex injections for the pain, which helped. He also complained of associated visual blurring, photophobia, kinesiophobia, nausea, vomiting, and sensitivity to light and sound. He also reported that his headaches were aggravated during strenuous activity, including straining, coughing, sneezing, and sexual activity. The examiner found that the Veteran's headaches had become more severe over the years, and noted that a neurological assessment in April 2008 indicated that they had become more severe in the preceding year. The examiner noted further that the Veteran's VA treatment records indicated that he had trials of topamax, propanolol and imitrex, and that he was continuing to take imitrex and propanolol. He concluded that the treatment with multiple medications for headaches indicated that the Veteran's headaches had increased since 2005. The Board also notes that the Veteran has reported that his headaches interfere with employment, and the record reflects that he has been granted a TDIU due to his service-connected disabilities, including his migraine headaches. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's reports of very frequent, completely prostrating and prolonged migraine headaches (more than once per month, completely prostrating, lasting one day), as well as his reports of occupational impairment, combined with the VA examiner's findings that the Veteran's headaches have increased and become more severe, lead to the conclusion that the Veteran's symptoms more nearly approximate the criteria for a 50 percent rating under Diagnostic Code 8100 beginning February 12, 2013. This is the highest rating available under this diagnostic code. The Board has also considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath v. Derwinski¸ 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability evaluation for the disability at issue, for this period. Left Ankle Disability A 10 percent rating is warranted for moderate limitation of motion of an ankle and a 20 percent rating is warranted for marked limitation of motion of an ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Ankylosis of an ankle warrants a 20 percent evaluation if it is in plantar flexion, at less than 30 degrees. A 30 percent evaluation is warranted if the ankylosis is in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). In the absence of ankylosis, a service-connected disability may not be rated based on ankylosis. Johnston v. Brown, 10 Vet. App. 80 (1997). Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II (2012). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the Veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Analysis On VA examination in November 2005, the Veteran complained of continued, continuous pain in the left ankle since his in-service injury and subsequent debridement and repair. He also complained of weakness, stiffness and swelling of the ankle at the end of the day. He denied redness, heat or drainage, but he did complain of instability and giving way, especially when not wearing boots and ankle braces. He also complained of locking. He reported taking Motrin 800 mg three times a day, which helped the pain and did not cause any side effects. The Veteran also complained of five flare-ups of ankle pain per week, which lasted for approximately thirty minutes to one hour. Flare-ups were brought on by extended mobility for more than 15-20 minutes, cold weather, or changes in weather, and relieved by resting and taking Motrin. He reported additional limitation of motion and functional impairment during flare-ups. He also reported using a boot and braces for the ankle, as noted, but denied using any cane or crutch. He claimed that without the boots or braces, the ankle would slide and grind when he stepped, and he would also experience pain and numbness. On physical examination, there was tenderness to palpation, and the Veteran walked with a limp, but did not have any functional limitations on standing. There was also evidence of false motion, and the examiner noted that the Veteran could dislocate the left ankle at will. There was no evidence of any deformity or angulation. There was also no evidence of any malunion, drainage, redness, heat, callosities, or any breakdown/unusual shoe wear pattern. Plantar flexion was limited to 37 degrees, with pain from 0 to 30 degrees, and dorsiflexion was limited to 15 degrees, with pain from 0 to 12 degrees. The examiner noted that repetitive use caused an increase in pain and reduced range of motion by about 5 degrees. The examiner also noted that the Veteran had instability of his left ankle and crepitations on range of motion. There was no evidence of ankylosis. There was also popping and grinding when he voluntarily dislocated the ankle. The examiner's diagnosis was chronic strain left ankle, status post surgery. It was also noted that X-rays showed prominent osteoarthritis, with no evidence of fracture or dislocation. In a January 2006 rating decision, the RO granted service connection for a chronic strain of the left ankle, status post surgery with degenerative joint disease. An evaluation of 10 percent was assigned, effective July 1, 2005. On VA examination in December 2006, the left ankle showed signs of tenderness, and on examination, the ankle revealed left dorsiflexion deformity, left plantar flexion deformity, left inversion deformity, and left eversion deformity. During range of motion, he had 5 degrees of dorsiflexion, with pain at 5 degrees, and 5 degrees of plantar flexion, with pain at 5 degrees. The examiner also noted that joint function was additionally limited after repetitive use by pain, with pain having the major functional impact, but it was not additionally limited by fatigue, weakness, lack of endurance or incoordination. There was no additional reduction in range of motion. VA treatment records show that in October 2008, the Veteran was undergoing orthopedic evaluation for surgical repair on OKC of medial osteocondyl lesion on his left talus. Orthopedic surgery note in October 2009 showed that X-rays, CT scan and MRI all demonstrated a joint depression type fracture of the talus with arthritic changes at the tibiotalar joint. The Veteran's doctor noted that given the Veteran's stated relief with extrinsic decreasing motion using a brace, he thought it reasonable to consider intrinsic fusion surgery. Left tibiotalar (ankle) fusion surgery was subsequently scheduled and performed on October 14, 2009. His diagnosis at discharge was left tibiotalar arthritis status post left total ankle fusion. The Veteran was noted to have done well postoperatively, except for some pain control issues that were controlled with oral analgesia. It was also noted that he was neurovascularly intact postoperatively. He was instructed to be non-weight- bearing on his left lower extremity for three months. On follow-up visit in November 2009, the Veteran was instructed to remain non-weight-bearing on the left side for an additional 6-7 weeks, at which time he was to return for repeat X-rays. On follow-up in January 2010, the Veteran was advised to begin gradually progress in weight bearing and crutches were ordered. He was scheduled to return to the clinic in 6 weeks. The Veteran did not appear for his follow-up in 6 weeks, and the next medical note of record is from an April 2010 emergency room appointment for headaches. It was noted at that time, the Veteran was ambulatory, and there was no indication of crutches or a boot noted. The Veteran was again treated in the emergency room in January 2011 for laceration of a finger, and was again noted to be ambulatory. On VA examination in March 2010, the Veteran complained of constant, sharp pain in the medial, lateral, and dorsal aspect of his left ankle, which increased with weight bearing, and when he dorsiflexed, plantar flexed, or attempted eversion or inversion of the ankle. He also complained of grinding and stiffness of the left ankle as well as reduced strength in his left calf. He denied deformity, instability, locking up, or giving way. The examiner also noted that he had not had any effusion or episodes of dislocation. He reported treatment with medication, including Lortab and Indomethacin, in addition to orthopedic surgery, and he was using a boot and crutches for ambulation. On physical examination, range of motion testing revealed plantar flexion from 0 to 10 degrees, with pain at 10 degrees; 0 degrees of dorsiflexion; and eversion and inversion to 5 degrees. There was pain with all movements of the ankle. The examiner noted that there was no additional limitation of motion with repetitive use, and there was no varus or valgus angulation of the os calcis in relationship to the long axis of the fibula or tibia. The examiner also noted that there was a vertical surgical scar on the lateral aspect of the left ankle, which measured approximately 13 cm, and was well-healed and nontender. There was also a slight amount of discoloration in the area of the lateral malleolus, and the appearance of the ankle showed slight hypertrophy of the joint. On neurological examination, cranial nerves II through XII were intact; deep tendon reflexes were 1+; and there were no pathological reflexes. In the left lower extremity, there was diminution to pin prick sensation in the toes, digits 1 through 3, and extending onto the dorsum of the left foot, approximately 5 cm. There was also a patch of reduced sensation posterior to the medial malleolus. Otherwise, sensation was intact in the left lower extremity. There was reduced muscle tone and muscle mass in the left calf, and the left calf was demonstrating 2 cm. reduced circumference as compared to the right calf. Cerebellar examination was intact. Strength testing could not be done due to arthrodesis of the left ankle. The examiner' s diagnosis was left ankle crush injury, postoperative left ankle arthrodesis, with residual ankylosis of the left ankle, hypesthesia of the left foot, and weakness of the left calf. In a May 2011 rating decision, the RO granted a temporary total evaluation for left ankle arthrodesis with residual ankylosis, hypesthesia and weakness left calf (previously evaluated as chronic strain left ankle, status post surgery with degenerative joint disease). A 100 percent rating was assigned from October 14, 2009 to January 31, 2010, based on convalescence. A 30 percent rating was assigned, effective February 1, 2010, under Diagnostic Code 5270. During his most recent VA examination in February 2013, the Veteran complained of severe pain, described as a sharp twinge when he lifted his foot or great toe. He also complained of throbbing pain with cold or wet weather, and increased pain with weight bearing. He claimed that he was only able to ambulate about 500 yards or less than one block before he had to sit down and rest his ankle. He reported that he wore a boot constantly and used either a cane, crutches or wheelchair/scooter for ambulation. He also reported having a fusion of the ankle in October 2009, which was not successful. The Veteran also complained of flare- ups about 3-4 times per year, which lasted 4-5 days. He claimed that during flare-ups, he had to use a wheelchair and his ankle was swollen and more painful. During range of motion testing, plantar flexion was to 20 degrees, with pain at 10 degrees, and dorsiflexion was to 5 degrees, with pain at 5 degrees. After repetitive use testing, plantar flexion was to 15 degrees, and dorsiflexion was to 5 degrees. The examiner also noted that there was additional limitation in range of motion after repetitive use testing, as well as functional loss/impairment of the ankle, in that there was less movement than normal, weakened movement, and excess fatigability. There was tenderness and pain on palpation of the ankle. Muscle strength was reduced to 4/5 during plantar flexion and dorsiflexion in the left ankle. There was no evidence of ankylosis. The examiner also noted that the Veteran used a wheelchair, braces, crutches, and a cane. X-rays revealed degenerative or traumatic arthritis of the left ankle, and a remote healed impaction fracture of the medial talar dome with secondary arthritic changes of the tibiotalar joint. The examiner also noted that the Veteran had a post-operative scar on the left ankle. He noted that the Veteran reported numbness around the scar, but it was not painful and/or unstable, and the total area was not greater than 39 square cm. (6 square inches). Finally, the examiner noted that there was no evidence of a neurological or muscle injury of the ankle related to the ankle disability. Period prior to October 14, 2009 The Board finds that an increased rating of 20 percent is warranted for the Veteran's left ankle disability for the period prior to October 14, 2009. As noted above, on VA examination in November 2005, the Veteran reported flare-ups of left ankle pain, which caused additional limitation of motion and functional impairment. In addition, during physical examination, the examiner noted that there was objective evidence of significantly reduced plantar flexion and dorsiflexion, with consideration of pain and functional impairment. Furthermore, on VA examination in December 2006, there was evidence of left dorsiflexion and plantar flexion deformity, as well as left inversion and eversion deformity, and the examiner also noted that joint function was additionally limited after repetitive use by pain. The Board also notes that the February 2013 VA examiner has opined that the Veteran's left ankle disability was severe from July 1, 2005 to October 14, 2009. He based his opinion on the Veteran's reports of pain on use, and the medical evidence documenting medication use, use of assistive devices, and evidence as to range of motion of the left ankle. Based on the Veteran's reports, combined with the objective evidence and the February 2013 VA examiner's opinion, and resolving all doubt in the Veteran's favor, the Board finds that for the period prior to October 14, 2009, the Veteran's left ankle disability more nearly approximated the criteria for marked limitation of motion of the ankle, and a 20 percent disability rating under Diagnostic Code 5271. This is the highest rating available under this diagnostic code. The Board notes that the provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board has considered whether a higher rating is warranted under other diagnostic codes. However, as there was no evidence of ankylosis of the left ankle prior to October 14, 2009, a higher rating under Diagnostic Code 5271 is not warranted. The Board notes further that although the Veteran has been noted on examination to have a post-operative vertical scar on the left ankle, associated with his service-connected left ankle disability, as the scar has not been shown during any period on appeal to be unstable or painful; deep and covering an area of at least 6 square inches, but less than 12 square inches; or superficial and covering an area of 144 square inches or greater; a separate rating under Diagnostic Codes 7801-7805 is also not warranted. A separate compensable rating for neurologic impairment is also not warranted because no evidence of a diagnosed neurological or muscle disability of the ankle related to the ankle disability during this period. The Board has also considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath v. Derwinski¸ 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability evaluation for the disability at issue, for this period. Outpatient treatment records from the VA Medical Center in Oklahoma City, Oklahoma dated from October 2008 to February have also been reviewed. These records also do not show that the Veteran meets the criteria for a disability rating in excess of 20 percent under any applicable diagnostic code at any time prior to October 14, 2009. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence submitted by the Veteran in the form of his correspondence to VA and his statements to the VA examiners. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran complete competence and credibility in reporting his symptoms and the impact of those symptoms on his daily activities, nothing in the lay evidence shows his disability picture more closely approximated the schedular criteria for a rating in excess of 20 percent during this period. Period beginning February 1, 2010 For the period beginning February 1, 2010, the Veteran's left ankle disability is rated as 30 percent disabling, under Diagnostic Code 5270. There was no evidence of ankylosis of the left ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity on examination in March 2010 or February 2013, or during VA treatment and private treatment. In fact, on examination in February 2013, there was no evidence of ankylosis. As such, a rating in excess of 30 percent under Diagnostic Code 5270 is not warranted for the period beginning February 1, 2010. The Board also notes that the provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board notes further that although the Veteran has been noted on examination to have a post-operative vertical scar on the left ankle, associated with his service-connected left ankle disability, as the scar has not been shown during any period on appeal to be unstable or painful; deep and covering an area of at least 6 square inches, but less than 12 square inches; or superficial and covering an area of 144 square inches or greater; a separate rating under Diagnostic Codes 7801-7805 is also not warranted. A separate compensable rating for neurologic impairment is also not warranted because no evidence of a diagnosed neurological or muscle disability of the ankle related to the ankle disability during this period. The Board has also considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath v. Derwinski¸ 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability evaluation for the disability at issue, at any time during the appeal, except during the Veteran's period of convalescence from October 14, 2009 to January 31, 2010. Outpatient treatment records from the VA Medical Center in Oklahoma City, Oklahoma dated from October 2008 to February 2011 have also been reviewed. These records do not show that the Veteran meets the criteria for a disability rating in excess of 30 percent under any applicable diagnostic code at any time during the appeal, except during the Veteran's period of convalescence from October 14, 2009 to January 31, 2010. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence submitted by the Veteran in the form of his correspondence to VA and his statements to the VA examiners. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran complete competence and credibility in reporting his symptoms and the impact of those symptoms on his daily activities, nothing in the lay evidence shows his disability picture more closely approximated the schedular criteria for a rating in excess of 30 percent during this period. Extra-schedular consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2012). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The Veteran's disabilities, as discussed above, are manifested by symptomatology contemplated by the rating criteria which have been applied in this case. The Veteran has not reported any symptoms outside of those contemplated by the rating schedule. No other factors have been reported that are outside the rating schedule. Furthermore, the evidence does not show that the Veteran has required frequent periods of hospitalization due to his disabilities. The Veteran has reported that his disabilities affect his ability to maintain employment. The Board notes that the Veteran has already been granted a TDIU, due to his service- connected disabilities beginning October 1, 2006, and marked interference with employment, beyond that contemplated by the current ratings, has not been demonstrated prior to October 1, 2006. However, the rating schedule contemplates the effects of the disabilities on the Veteran's ability to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2012). The rating schedule is meant to compensate for considerable time lost from work. 38 C.F.R. § 4.1 (2012). Referral for extraschedular consideration would not be warranted unless the rating criteria did not contemplate his symptoms. Hence, referral for consideration of an extraschedular rating is not warranted. In reaching these conclusions the Board has resolved reasonable doubt in the Veteran's favor, where applicable. 38 U.S.C.A. § 5107(b) (West 2002). TDIU prior to October 1, 2006 The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2011). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is, "whether the Veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Veteran had a combined disability rating of 70 percent, with at least one disability rated at 40 percent as of July 1, 2005. Therefore, he met the schedular criteria for a TDIU as of that date. In a December 2006 rating decision, the RO granted entitlement to a TDIU as of October 1, 2006. However, the Veteran has reported that he has been unemployable due to his service-connected disabilities, which include a left ankle disability, PTSD, migraine headaches, hypertension, and right ankle conditions, since July 1, 2005. The record reflects that the Veteran did not file his claim for TDIU until September 6, 2006, and he did not claim that his service-connected disabilities caused him problems with employment prior to that time. In this regard, during a VA orthopedic examination in November 2005, the Veteran reported that he had a sit-down job so his left ankle, right ankle, left knee and right foot disabilities did not affect his job to a great extent. Furthermore, during a November 2005 PTSD examination, he reported that since his discharge from service he had attended truck driving school, and was enrolled in a second related program to train for over the road truck driving and dispatching. He also reported that he was nervous and tense and occasionally irritable during training activities, but he also indicated that he was looking forward to finishing the program and working and that the company that he was hoping to work for was providing the training. The examiner opined that his PTSD produced a moderate degree of dysfunction in the Veteran's work capacity. He did not indicate that the Veteran was unable to work due to his PTSD. In an October 2006 Request for Employment Information, Form 21-4192 submitted by the Veteran's former employer, Burford Corporation, it was noted that the Veteran worked from August 8, 2006 to September 30, 2006, and his employment was terminated on September 30, 2006, during his 90-day probationary period, due to the employer's needs. Specifically, the employer noted that the Veteran was given concessions, such as three breaks per working day, extended lunches, time off for medical reasons, and access to desk work as required when in discomfort. The Board also notes that during his October 2010 VA examination, the Veteran reported that he had worked as recently as December 2009. Based on this evidence, the Board finds that there was no period prior to October 1, 2006 when a TDIU would be for consideration. Unless otherwise specified, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). See also Rice v. Shinseki, supra (concluding that the Board erred in analyzing an earlier effective date for a TDIU under 38 C.F.R. § 3.400 (o) when an initial disability rating was on appeal). ORDER Prior to January 19, 2006, an increased rating for PTSD, is denied. A 20 percent rating, but no more, is granted for left ankle arthrodesis with residual ankylosis, hypesthesia and weakness left calf (previously evaluated as chronic strain left ankle, status post surgery with degenerative joint disease), for the period prior to October 14, 2009. For the period beginning February 1, 2010, an increased rating for left ankle arthrodesis with residual ankylosis, hypesthesia and weakness left calf (previously evaluated as chronic strain left ankle, status post surgery with degenerative joint disease), is denied. Prior to February 12, 2013, an increased rating for migraine headaches, is denied. A 50 percent rating, but no more, is granted for migraine headaches, for the period beginning February 12, 2013. Entitlement to a TDIU prior to October 1, 2006 is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs