Citation Nr: 1334174 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-02 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for residuals of a right Achilles tendon rupture with repair and osteophytic spurring of the right ankle. 2. Entitlement to an initial rating in excess of 10 percent for a low back strain. 3. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active service from December 1988 to January 2004, with an additional four years, ten months, and 14 days of prior active duty. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida granted service connection for residuals of a right Achilles tendon rupture with repair and osteophytic spurring of the right ankle and for a low back strain, and awarded evaluations of 10 percent for each disability, effective from February 1, 2004. [During the course of the appeal, the Veteran moved to Georgia, and jurisdiction of the claim was transferred to the RO in Atlanta, Georgia.] In October 2010, the Veteran testified at a hearing conducted at the RO before the undersigned. A transcript of the hearing has been associated with the claims file. In April 2011, the Board remanded the Veteran's appeal for further development. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The VVA file includes an August 2013 Informal Hearing Presentation. 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. FINDINGS OF FACT 1. Throughout the appeal period, the service-connected residuals of a right Achilles tendon rupture with repair and osteophytic spurring of the right ankle has been manifested by no more than moderate limitation of ankle motion. 2. Throughout the appeal period, as a result of the service-connected low back strain, forward flexion of the Veteran's thoracolumbar spine is not limited to 60 degrees or less; the combined range of motion of his thoracolumbar spine is greater than 120 degrees; and muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis is not present. 3. The Veteran does not meet the minimum threshold requirements for a TDIU on a schedular basis; his service-connected disabilities do not preclude all forms of substantially gainful employment consistent with his education and occupational background. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for residuals of a right Achilles tendon rupture with repair and osteophytic spurring of the right ankle are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5271 (2013). 2. The criteria for an initial rating in excess of 10 percent for a low back strain are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2013). 3. 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. The Veteran's Claims Assistance Act of 2000 (VCAA) The VCAA, and the pertinent implementing regulation, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. These provisions require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA must inform the claimant and any representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on the claimant's behalf. The United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In any event, however, the appeal of the claims for higher initial ratings arises from the initial ratings assigned with awards of service connection. The statutory scheme contemplates that, once a decision awarding service connection, a disability rating, and an effective date has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated. Dingess/Hartman, 19 Vet. App. 473, 490-91 (2006). Here, the Veteran is exercising his right to appeal the ratings assigned. A November 2006 statement of the case (SOC) properly provided the Veteran with notice of the criteria for rating ankle and low back disabilities-and further notice on the downstream issue of initial increased ratings, including of what the evidence showed, and why the current ratings were assigned. The Veteran has had opportunity to respond. He is not prejudiced by this process. Notably, he does not allege that notice in this case was less than adequate or that he has been prejudiced by any notice deficiency. Regarding the TDIU claim, the record reflects that the Veteran was provided all required notice in a letter mailed in May 2011. Although the Veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that, following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the claim. See June 2012 Supplemental Statement of the Case. There is no indication in the record or reason to believe that the decision of the originating agency would have been different had adequate VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The duty to notify has been met. All appropriate development to obtain the Veteran's service treatment records (STRs) and pertinent post-service medical records (including VA and private) has been completed. 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. In this regard, in June 2011, the Veteran was asked to provide releases for private treatment records, but he failed to respond. Moreover, the Veteran failed to report for VA examinations scheduled in August and December 2011. In a March 2012 SSOC, the Veteran was notified that he had failed to report to the examinations. The Veteran did not respond, and specifically did not contact VA to arrange for re-scheduling. Good cause for his failure to report for the examinations has not been shown. The Board finds that no additional development, as for medical opinions or examinations, is necessary. Evidentiary development in this matter is complete to the extent possible. VA's duty to assist is met. Discussion of the Veteran's October 2010 hearing is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2) Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issues as listed above were identified at the hearing. Information was elicited from the Veteran concerning the severity of his ankle and back disabilities, to include their impact on his employability. In response to this testimony, the claim was remanded for additional development. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claims. II. Increased Ratings 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. 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. Controlling law provides that when a claimant fails to report for an examination scheduled in conjunction with a claim for an original compensation claim, the claim shall be rated on the evidence of record. See 38 C.F.R. § 3.655. A veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The basis of disability evaluation 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. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. 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 a 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 reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. A. Right Ankle Disability Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Moderate limitation of motion of an ankle warrants a 10 percent evaluation, while marked limitation of motion of an ankle warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The terms "moderate" and "marked" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 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. A 40 percent evaluation is authorized for ankylosis of an ankle if the ankylosis is in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. For reference, under VA rating criteria normal ranges of motion of the ankle are as follows: dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Other diagnostic codes relating to the ankle are Diagnostic Code 5262 (malunion or nonunion of the tibia and fibula); Diagnostic Code 5272 (ankylosis of the subastragalar or tarsal joint); Diagnostic Code 5273 (malunion of os calcis or astragalus); and Diagnostic Code 5274 (astragalectomy). As noted below, these conditions are not shown on examination and application of these diagnostic codes is not warranted. STRs show that the Veteran sustained a partial right Achilles rupture in service. He underwent surgical repair and physical therapy. Following service, an August 2004 VA examination report notes the Veteran's complaints of tenderness, soreness and limited motion in the right ankle. On examination, range of motion of the right ankle was dorsiflexion to 15 degrees and plantar flexion unimpeded to 25 degrees. The Veteran was able to stand on his toes with minimal difficulty. Anterior drawer test was negative. Muscle function was intact. X-ray studies revealed minimal osteophytic spurring. In a February 2005 addendum, the VA examiner stated that dorsiflexion strength and range of motion was limited by 10 degrees due to pain and weakness. The February 2005 rating decision awarded service connection for residuals of right Achilles tendon rupture with repair and osteophytic spurring of the right ankle, and assigned a 10 percent rating, effective February 1, 2004. The Veteran disagreed with the rating assigned. At the October 2010 hearing, the Veteran testified that his ankle problems caused him to walk like a robot and that he had difficulty using stairs and standing for more than 10 minutes. The Veteran failed to report for VA examinations in August 2011 and December 2011. A March 2012 QTC examination report notes his complaints of difficulty running, walking and squatting. He used no assistive devices to ambulate. On examination, range of motion of the right ankle was: plantar flexion to 30 degrees, with no objective evidence of painful motion; and dorsiflexion to 15 degrees, with no objective evidence of painful motion. Upon repetitive use testing, the range of motion was the same. The right ankle was painful to palpation. Strength was 5/5. No laxity or ankylosis was found on examination. The examiner stated that the Veteran would have difficulty walking, running and squatting at work. Also of record are VA outpatient treatment records dated from 2006 to 2011 which note the Veteran's ongoing complaints of ankle pain. Comparing the ranges of motion shown during the period of the appeal (15 degrees of dorsiflexion at the worst; 25 degrees of plantar flexion at the worst) with the norms, it is clear that the right ankle limitation of motion does not more nearly approximate a marked rather than moderate level of impairment. As noted above, the Veteran is still able to walk on his toes, does not use assistive devices to ambulate, has full muscle strength and has no instability. Hence, the evidence shows that the Veteran's right ankle disability does not more nearly approximate the criteria for a 20 percent rating than those for a 10 percent rating at any time during the initial evaluation period. In so concluding, the Board has considered the Deluca factors discussed above. As the Veteran has already been assigned a 10 percent evaluation for his right ankle disability based on painful motion, an additional evaluation for pain would be prohibited by 38 C.F.R. § 4.14. In addition, there is no other evidence showing that the Veteran has more limitation of motion than that found at the VA examinations. As the criteria for a higher initial rating have not been demonstrated, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). B. Low Back Disability Lumbar strain with degenerative arthritis of the spine is to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242. Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a , Diagnostic Code 5243. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted. With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted. With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted. With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent evaluation is warranted. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Under the general rating formula for rating diseases and injuries of the spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. An evaluation of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. STRs show that the Veteran strained his back while weights in service. Thereafter, he complained of low back pain without radiculopathy. After service, an August 2004 VA examination reflected the Veteran's complaints of persistent low back pain. He denied any radicular, bowel, or bladder symptoms. He reported that he actively exercised, to include lifting weights. On examination, mild paraspinal tenderness was noted. Range of motion of the lumbar spine was: forward flexion to 70 degrees; extension to 30 degrees; lateral bending to 45 degrees bilaterally; and rotation to 50 degrees bilaterally. Movement was completed with minimal difficulty. Straight leg raising was negative. After reviewing the claims file, the examiner stated that the Veteran's low back disability was relatively asymptomatic aside from the occasional episodes of exacerbation. In a February 2005 addendum, the VA examiner opined that low back function was not limited by pain, fatigue, weakness, or lack of endurance following repetitive use. The February 2005 rating decision awarded service connection for low back strain, and assigned a 10 percent rating, effective February 1, 2004. The Veteran disagreed with the rating assigned. A June 2009 VA MRI study revealed a mild disc bulge at L5-S1 which caused minimal central canal and bilateral recess stenosis. At the October 2010 hearing, the Veteran testified that he was experiencing back spasms and pain. He also reported numbness in his legs. The Veteran reported needing bed rest because of his back spasms about four times a year. He reported that he had to quit two jobs because of his back problems. The Veteran failed to report for VA examinations in August 2011 and December 2011. However, of record are VA outpatient treatment records dated from 2006 to 2011 which note the Veteran's ongoing complaints of low back pain and stiffness. The Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for his back disability. Forward flexion has been no worse than 70 degrees, and the combined range of motion has been greater than 120 degrees. There is no evidence indicating that the Veteran experienced muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Therefore, a disability rating in excess of 10 percent is not warranted. In so concluding, the Board has considered the Deluca factors discussed above. As the Veteran has already been assigned a 10 percent evaluation for his back disability based on painful motion, an additional evaluation for pain would be prohibited by 38 C.F.R. § 4.14. In addition, there is no other evidence showing that the Veteran has more limitation of motion than that found at the 2004 VA examination. Consideration has been given to assigning a disability rating under Diagnostic Code 5243, for degenerative disc disease (DDD) based on incapacitating episodes rather than limitation of motion. The Board acknowledges that the Veteran's testimony that he requires bed rest four times a year for his back pain. Although the Veteran was asked to provide evidence of such, there is no medical evidence of record indicating that he experiences incapacitating episodes requiring bed rest prescribed by a physician. Thus, an evaluation based on such is not warranted at this time, and the Veteran is properly rated based on pain and limitation of motion. The Board has also considered whether a separate compensable rating for neurological impairment in the lower extremities is warranted. However, the evidence shows that the Veteran has been found to have any neurological impairment associated with the low back disability. Therefore, the Board finds that a separate evaluation for a neurological impairment is not warranted. The Board again notes that the Veteran was provided additional opportunities to undergo a VA examination in August and December 2011, but he did not comply with the examination requests. The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood, supra. As the criteria for a higher initial rating have not been demonstrated, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). C. Extra-Schedular Consideration The Board has also considered whether the record raises the matter of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology for both his right ankle and his low back disabilities. The rating criteria provide higher ratings. However, the competent evidence of record does not reflect that the disabilities at issue are manifested by the criteria noted above so as to warrant such a higher rating. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are adequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Thus, referral for extra-schedular consideration is not warranted. III. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. 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. Controlling law provides that, when a claimant fails to report for an examination scheduled in conjunction with a claim for an original compensation claim, the claim shall be rated on the evidence of record. See 38 C.F.R. § 3.655 . For the period of the appeal, the Veteran had five service-connected disabilities: residuals of a right Achilles tendon rupture with repair and osteophytic spurring of the right ankle, rated 10 percent disabling; residuals of a left Achilles tendon rupture with repair and osteophytic spurring of the left ankle with scar, rated 20 percent disabling; a low back strain, rated 10 percent disabling; post-traumatic headaches, rated 0 percent disabling; and tinnitus, rated 10 percent disabling. The combined disability rating for the service-connected disabilities is 40 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 low back disability has been shown to be asymptomatic. (The Board again notes that the Veteran was provided additional opportunities to undergo a VA examination in August and December 2011, but he did not comply with the examination requests.) His service-connected ankle disabilities, while impacting his ability to run, squat and walk, see March 2012 QTC examination report, clearly would not prevent him from his teaching (a sedentary profession). Additionally, his service-connected headaches were not found to be causing him any problems on VA neurological examination in August 2008. In fact, he was working full time as a teacher without any limitations on his activities or function. Finally, an August 2004 VA audiological examination described his tinnitus as periodic (once a week, lasting only a few hours), in one ear. An August 2004 VA examination report and an August 2009 VA outpatient treatment record note that the Veteran was working as a teacher at a technical school. The Veteran stated at the October 2010 hearing that he had to quit two jobs because of his back pain, but also indicated that he was working currently. Although he was asked to provide information regarding his employment, see May 2011 letter to the Veteran, he has failed to provide any such information. As previously noted herein, the Veteran failed to report for VA examinations in August 2011 and December 2011. Relevant evidence of record does not show that the Veteran was unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. 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. ORDER An initial rating in excess of 10 percent for residuals of a right Achilles tendon rupture with repair and osteophytic spurring of the right ankle is denied. An initial rating in excess of 10 percent for a low back strain is denied. A TDIU is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs