Citation Nr: 1332030 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-48 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the left wrist, claimed as residuals of a gunshot wound. 2. Entitlement to service connection for residuals of cold weather injury (frostbite) of the bilateral upper and lower extremities. 3. Entitlement to an initial compensable disability rating for a left wrist scar. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty in the military from November 1959 to February 1962. This appeal to the Board of Veterans' Appeals (Board) is from June 2008, and January and May 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the June 2008 decision, the RO denied the Veteran's claims for service connection for residuals of frostbite of the left and right lower and upper extremities; and also granted the Veteran's claim for service connection for a scar of the left wrist and assigned an initial 0 percent rating, effective August 7, 2007. The Veteran appealed for a higher initial rating for the left wrist scar. In the January 2009 rating decision, the RO denied an additional claim for service connection for DJD of the left wrist, claimed as residuals of a gunshot wound. Also, in the May 2009 rating decision, the RO denied the Veteran's claim for a TDIU. This case was before then Board in February 2012 when it was remanded for additional development. The RO scheduled a Travel Board hearing for June 2011, but the Veteran then withdrew the hearing request in writing. See 38 C.F.R. § 20.704(e) (2013). In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. Both the Board and originating agency (see June 2013 Supplemental Statement of the Case) have reviewed the VVA file, which includes VA treatment records dated from July 1996 to June 2013. The other documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A chronic left wrist disorder, to include degenerative joint disease, was not shown in service of the left wrist or for many years thereafter; and, the preponderance of the evidence is against the finding that any current degenerative joint disease of the left wrist is related to the Veteran's active service. 2. The competent and credible evidence of record fails to establish the presence of residuals of cold weather injury (frostbite) of the bilateral upper and lower extremities in service or at any point during the pendency of the appeal. 3. The Veteran's left wrist scar has been manifested by a scar with no associated tenderness, ulceration, or limitation of function of the affected area. 4. The Veteran does not meet the minimum threshold requirements for a TDIU on a schedular basis; and, his service-connected disabilities did not preclude all forms of substantially gainful employment consistent with his education and occupational background. CONCLUSIONS OF LAW 1. Degenerative joint disease of the left wrist was not incurred in or aggravated by active service, nor is it presumed related to service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013) 2. Residuals of cold weather injury (frostbite) of the bilateral upper and lower extremities were not incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 3. The criteria for an initial compensable evaluation for left wrist scar have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (prior to October 23, 2008); 38 C.F.R. §§ 4.7, 4.31 (2013). 4. The criteria for a TDIU are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 agency of original jurisdiction (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). 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. Regarding the service connection and TDIU claims, 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); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in August 2007, September 2008 and April 2009 of the criteria for establishing service connection and a TDIU, 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 adjudications. Nothing more was required. Regarding the initial rating claim, as the June 2008 rating decision granted service connection for left wrist scar, that claim is now substantiated. VA's General Counsel has clarified that no additional VCAA notice is required in this circumstance concerning a "downstream" issue, such as the rating or effective date assigned for a service-connected disability and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003. The filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(3). Instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability-rating and/or earlier-effective-date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a Statement of the Case (SOC) if the disagreement concerning the downstream issue is not resolved. And because the RO issued the appropriate SOC in November 2009 addressing the downstream increased rating claim, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning a higher rating, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). VA's duty to assist has also been met. The Veteran's pertinent medical records, to include service treatment records (STRs) and identified, available post-service treatment records have been obtained. Indeed, contrary to assertions of his STRs being destroyed in a fire or being held as classified, his STRs are of record and appear complete. The AOJ also obtained information from the Social Security Administration (SSA) certifying that no records pertaining to the Veteran were available. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim. The Board is also unaware of any such records. Most recently, as directed by the February 2012 Board remand, VA treatment records dated from July 1996 to June 2013 were obtained. Further, as indicated, a search for records was conducted through the SSA. Accordingly, the Board finds that there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has been afforded the appropriate VA examinations for his left wrist claims. The March 2008 scars examination and the November 2009 joints examination were adequate as the examiners reviewed the relevant medical history, considered the Veteran's lay history, and provided opinions with supporting rationale and citation to the evidence. Recognition is given to the fact that the reports of the Veteran's scar examination is now more than five years old. 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. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's left wrist scar since he was last examined in March 2008. The Veteran does not contend otherwise. The Board acknowledges that a VA examination has not been conduct to determine whether the Veteran has disability of the extremities due to cold weather injuries. No such examination is deemed necessary. As discussed in further detail below, there is no competent evidence establishing that any of the Veteran's current complaints of the extremities is due to a cold weather injury. His lay history of suffering a cold weather injury in service is also found to lack credibility. See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Paralyzed Veterans of America , et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that, if the evidence of record does not establish that the veteran suffered an event, injury, or disease in service, no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (holding that VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). Accordingly, a cold weather injury (frostbite) examination is not required here, even under the low threshold of McLendon. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claims. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for arthritis, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a), which includes arthritis but not cold weather injuries. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has thoroughly reviewed all the evidence in the Veteran's claims file, including evidence in VVA. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran contends that he currently has degenerative joint disease of the left wrist that is related to a gunshot wound sustained in service. He also maintains that he has residuals of a cold weather injury to the upper and lower extremities that is related to frostbite he sustained in service. He reports that he was working on a classified mission in Germany at the time of both injuries, and his injuries were treated by civilians. See August 2007, November 2007, February 2009, February 2013 and July 2013 statements from the Veteran. The Veteran's STRs include numerous treatment notes that detail his complaints of a upper respiratory infection, a right thumb injury, and genitourinary system problems. There is a September 1961 treatment note that references the Veteran's complaint of right foot pain on standing and walking. There is also an April 1960 report showing that he was evaluated for problems with a lack of maturity and motivation. However, the STRs silent with respect to any complaints, treatment, or diagnosis of a gunshot wound or a cold weather injury. In a December 1961 report of medical history pending service discharge, the Veteran denied any history of swollen or painful joints. No wrist disability (other than a left wrist scar) was noted on separation examination in January 1962. There was again no reference to a gunshot wound or a cold weather injury. Following service, a March 1998 VA annual primary care examination report notes the Veteran's reported history of frostbite to the arms and hands during service. He complained of current pain down both arms with stiffness in the hands. Motor and sensory examination of the upper extremities was within normal limits. A June 1998 VA neurology consultation report notes the Veteran's complaints of pain, swelling and numbness in his hands for the past six months. He denied all other common neurological complaints. He reported a history of frostbite, and denied current diabetes or hypertension. Examination revealed a normal neurologic examination without a focal deficit. Blood work completed in July 1998 suggested probable arthritic disease; this was confirmed by X-ray studies in October 1998 which showed osteoarthritis of the hands. In August 2007, the Veteran submitted a claim seeking service connection (in pertinent part) for frostbite and a bullet wound to the left wrist. A September 2007 treatment record from Dr. S. shows the Veteran's complaints of sharp pain in the right arm from the hand up to the shoulder. A March 2008 VA scars examination report notes the Veteran's history of a left wrist injury in service. The Veteran denied left wrist pain. There was no evidence of loss of function or limitation of motion on examination. X-rays obtained in March 2008 note findings of advanced degenerative joint disease and soft tissue swelling in the left wrist. A March 2008 VA outpatient treatment record notes that the Veteran reported having left wrist pain that begins in the index finger and radiates back to the wrist. A June 2008 rating decision granted service connection for a scar on the left wrist. While it was noted that the Veteran claimed that the scar was related to a gunshot wound, the RO made no finding that the scar was related to a gunshot wound. It was only noted that the STRS showed the presence of a scar on the left wrist, and the March 2008 examination diagnosed a scar. An August 2008 VA nerve conduction study revealed electrodiagnostic evidence of left median neuropathy originating from the elbow/forearm level. A November 2009 VA joints examination report notes that the Veteran reported being shot in the wrist during his military service. He stated that the bullet grazed his wrist and he sustained a vascular injury to the joint. Currently, the Veteran complained of left wrist pain. On examination, tenderness, pain at rest and guarding of movement were noted. No other abnormalities were found. The examiner noted that X-rays obtained in March 2008 note findings of advanced degenerative joint disease and soft tissue swelling in the left wrist. A history of ganglion cyst also was noted. After reviewing the Veteran's claims file the VA examiner opined that it is less likely than not that the Veteran's left wrist arthritis was caused by or a result of his military service, to include any left wrist injury sustained therein. The examiner stated, "The (gunshot wound) did cause the scar but not the progressive arthritis of the left wrist. The degenerative wrist disease and or arthritis was caused by a different pathological process. This is not pathnomonic [sic] of a (gunshot wound)." Left Wrist Upon review of the evidence, the Veteran's STRs are completely silent as to any left wrist disability (other than his already service-connected left wrist scar). The Board again notes that at the time of separation, the Veteran denied any history of swollen or painful joints. Other than a left wrist scar, the upper extremities were clinically evaluated as normal. There is simply no evidence that the Veteran suffered any type of injury to his wrist other than whatever laceration he may have sustained that caused the scar. There is certainly no evidence supporting his assertion that the scar is the result of a gunshot wound. The STRs appear complete and there is no reference to a gunshot wound. As he was seen on multiple occasions for a host of other ailments and injuries, one would logically think that a gunshot wound would be annotated somewhere in the Veteran's medical record, even if he was initially treated by a civilian physician. He is also not in receipt of a Purple Heart Medal, which would have been issued to him if he had been shot by a sniper (as he claims). See http://www.va.gov/opa/publications/celebrate/purple-heart.pdf. Consideration has been given to the Veteran's contention that there is no record of his gunshot wound because he was on classified mission. However, the record reveals that the Veteran was evaluated on two occasions for behavioral problems that involved a lack of maturity and poor motivation. The second report even suggested that the Veteran's lack of maturity had a deleterious effect on his ability to function in the military. Coupled with the fact that his military occupational specialty was vehicle mechanic, the Board does not find it credible that he would have been selected for a classified mission. The notion that he sustained a gunshot wound from a sniper in Germany in a peace time era equally lacks any credibility. 38 C.F.R. § 3.2 (2013). Next, the record does not contain any evidence that arthritis was manifested in the Veteran's first post-service year. The first evidence of complaints or findings of a left wrist disability (other than a scar) is not until 1998, as noted above. While not outcome determinative, the delay in producing any evidence of a disability until over 30 years after discharge is persuasive negative evidence. Moreover, had the Veteran sustained a gunshot wound in service and presumably experienced problems related thereto, one would think he would have reported such to the VA examiner when he was seen in 1998. This too undermines the credibility of his assertion that his wrist problem is related to any injury incurred in service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The November 2009 VA examiner's opinion is also clearly against the Veteran's claims seeking service connection for this disability. This opinion is based on a review of the Veteran's entire pertinent medical history, including his STRs and post-service medical evidence as noted above. The examiner provided a detailed explanation of the rationale for his conclusion. Indeed, as noted above, the examiner determined that the nature of the Veteran's left wrist disability (other than the scar) was not characteristic of a gunshot wound. There is no medical evidence to the contrary. The Veteran believes that his claimed disability was caused by his active service. The Board acknowledges the lay assertions that the Veteran was shot in the wrist during service and finds that these statements are competent recitations of matters within the Veteran's own personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In other words, the Veteran is competent to report his activities during his service, to include this injury. However, he is not competent to discuss the onset of any claimed disability due to this injury. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. Moreover, notwithstanding the lack of credibility in the Veteran's assertion that he sustained a gunshot wound to his wrist, the lay contentions that the claimed left wrist disability (other than the scar) was manifested in service are outweighed by the lack of findings in the STRs and post-service evidence of record which, as a whole, indicates the Veteran did not report any pertinent complaints until 1998, which is more than 35 years after his discharge from active duty. Therefore, the Board finds that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. Continuity has not here been established, either through the competent evidence or through the Veteran's statements. In reaching the above conclusions, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107(b). Residuals of Cold Weather Injuries The Veteran's STRs are silent for findings related to frostbite or cold weather injuries. A December 1961 report of medical history at separation notes that the Veteran denied any history of swollen or painful joints. The January 1962 service separation examination report shows clinical evaluation of the upper and lower extremities was normal (with the exception of a left wrist scar). The lack of reference to such an injury in light of documented treatment for multiple other injuries and illness is clearly detrimental to his claim. Again, had he suffered a cold weather injury, the Board believes that a record of such would have been made. Further, for the reasons set forth above, the Board does not find the Veteran's claim of a sustaining cold weather injury during a classified mission to be credible. More importantly, there is no post-service medical evidence of any residuals of frostbite. The Veteran first complained of residuals of in-service frostbite to the upper extremities in 1998, more than 35 years after service. However, neurological examination at that time was normal. See VA outpatient treatment records dated in 1998. Osteoarthritis of the hands was diagnosed, but no residuals of frostbite were diagnosed. Although the Veteran has more recently complained of upper extremity pain, see VA and private treatment records and examination reports dated from 2007 to 2013, these complaints have not been related to residuals of cold weather injuries. A November 2011 VA outpatient treatment record notes that the Veteran reported a history of in-service frostbite to the hands and feet and current complaints of left ankle pain. See VVA. A June 2013 VA outpatient treatment record notes that X-ray studies revealed arthritis of the left ankle. See VVA. The criteria under Jandreau have not been met. There is no medical diagnosis of residuals of frostbite of record to rely on, either contemporaneously or at a later time. Indeed, while the Veteran is competent to report experiencing cold weather in service and symptoms of pain and numbness in his extremities, he lacks the necessary the requisite medical training, expertise, or credentials needed to render a diagnosis. As such, the claims must fail. In sum, the record does not show the Veteran has had diagnosed residuals of cold weather injuries at any time. As the Veteran has not shown a current disability for which service connection can be granted, the claims must be denied. See Brammer, supra. The Board has also considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. III. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Board notes that the regulations pertaining to rating skin disabilities were revised, effective October 23, 2008. However, those revised provisions are applicable only to claims received on or after October 23, 2008. Because the current claim was received prior to that date, those revisions do not apply in this case. 73 Fed. Reg. 54708 (Sept. 23. 2008). A 10 percent evaluation is authorized for superficial, unstable scars. 38 C.F.R. § 4.118, Diagnostic Code 7803. A note following this diagnostic code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. In addition, a 10 percent evaluation is authorized for superficial scars that are painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804. Notes following Diagnostic Codes 7803 and 7804 provide that a superficial scar is one not associated with underlying soft tissue damage. In addition, scars may be rated on the basis of limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (prior to October 23, 2008). Diagnostic Code 7800 evaluates disfigurement of the head, face, or neck and is not applicable in the present appeal. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. A January 1962 separation examination report notes the presence of a 2 cm scar on the left wrist. The Veteran submitted a claim for service connection in August 2007. A March 2008 VA scars examination report notes the Veteran's history of a left wrist injury in service. On examination, a scar measuring .1 cm in width and 3.5 cm in length was noted on the left wrist. The scar was not tender to palpation and there was no evidence of adherence to the underlying tissue, ulceration, breakdown, or underlying soft tissue damage. The Veteran denied left wrist pain. There was no evidence of loss of function or limitation of motion. A March 2008 VA outpatient treatment record notes that the Veteran reported having left wrist pain that begins in the index finger and radiates back to the wrist. A June 2008 rating decision granted service connection for left wrist scar. A September 2008 VA scars examination report notes the Veteran's complaints of worsening pain and numbness from his left arm (below the elbow) to his left hand. MRI studies revealed left median neuropathy originating from the elbow/forearm level. X-ray studies of the left wrist revealed advanced degenerative joint disease. On examination, the left wrist scar measured 0.1 cm wide and 3.0 cm long. There was no underlying soft tissue damage or skin ulceration or breakdown over the scar. There is no limitation of motion or loss of function caused by the scar. After reviewing the claims file, including the March 2008 VA outpatient treatment record, the examiner opined that the Veteran's left wrist pain is from arthritis and neuropathy, not from the scar located on the volar surface of the wrist. Regarding the Veteran's left wrist scar, tenderness, ulceration, or limitation of function of the affected area has not been shown. See 38 C.F.R. § 4.118. Although the Veteran complained of pain on examination in March 2008, this pain was not associated with his scar and was described as associated with his arthritis and neuropathy of the left wrist. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (where the effects of a service-connected disability have not been clinically disassociated from those of a non-service-connected disorder, all relevant signs and symptoms must be attributed to the service-connected disability). Therefore, the Veteran's claim for entitlement to an increased rating must be denied. The Board has considered staged ratings, under Fenderson, supra, but concludes that they are not warranted. The Board acknowledges that the Veteran is competent to report symptoms of his left wrist scar. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected scar has been provided by a VA medical professional who has examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board finds the medical records (particularly the March 2008 VA examination report) to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). As for extra-schedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 116. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's left wrist scar disability picture is so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's disability on appeal has been evaluated under the applicable Diagnostic Code that has specifically contemplated the level of occupational and social impairment caused by service-connected scar. The Veteran's symptoms (or lack thereof) are specifically enumerated under Diagnostic Codes 7803 and 7804. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Because the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. See Gilbert, supra. IV. TDIU Law and Regulations It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income. . . ." A claim for a total disability rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet App. 31 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. For a veteran to prevail on a total rating claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulation further provides 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. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disability of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16. In any event, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board, however, does not have the authority to make such an assignment in the first instance. Rather, the Board may only grant a total rating under section 4.16(b) after the issue of extra-schedular consideration has been first referred to and denied by VBA's Director of Compensation & Pension Service. Additionally, the Court has recognized that, "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) ... [than] for purposes of a TDIU claim under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet. App. 157, 162 (1994). While the former regulatory provision requires marked interference with employment, the latter requires evidence of unemployability. Id. For the period of the appeal, the Veteran had two service-connected disabilities: residuals of a right thumb fracture, rated 10 percent disabling; and left wrist scar, rated 0 percent disabling. The combined disability rating for the service-connected disabilities is 10 percent. Accordingly, the Veteran does not meet the minimum threshold requirements for a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). As noted above, the Veteran's service-connected left wrist scar has been manifested by a scar with no associated tenderness, ulceration, limitation of function of the affected area, or disfigurement. See September 2008 VA scars examination report. Additionally, his service-connected residuals of a right thumb fracture have been manifested by complaints of pain, swelling and weakness, as well as difficulty opening jars and doors. On examination, muscle strength was 4/5 in the right hand. The Veteran was able to oppose his thumb to within one to two inches of his fingers. See March 2008 VA hand examination report. In March 2009 VA Form 21-8940, the Veteran stated that he was no longer able to work full time because of his frostbite and bullet wound. He stated that he last worked full time in 1998, and because too disabled to work at all in 2007. He had been working construction jobs as a carpenter. He reported that he had a high school education. During a November 2009 VA examination, the Veteran reported that he retired from his construction job in 2007; he was eligible because of his age or duration of work. Subsequent VA treatment records show no treatment for his scar or thumb disabilities. The medical evidence of record does not show that the Veteran was unable to secure or follow a substantially gainful occupation because of his two service-connected disabilities. Clearly, his service-connected scar and thumb disabilities would have an impact on his ability to work as a carpenter. However, there is no evidence that these disabilities would preclude all types of jobs, particularly sedentary employment. The record does not support a finding that the Veteran's service-connected disabilities, either alone or in concert, preclude him from maintaining substantial and gainful employment. In light of the foregoing, the Board finds that the Veteran does not meet the requirements for a TDIU on an extra-schedular basis. Referral to the Director of Compensation and Pension Services is simply not warranted. (CONTINUED NEXT PAGE) ORDER Service connection for degenerative joint disease of the left wrist, claimed as residuals of a gunshot wound, is denied. Service connection for residuals of cold weather injury (frostbite) of the bilateral upper and lower extremities is denied. An initial compensable rating for left wrist scar is denied. A TDIU is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs