Citation Nr: 1334408 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 04-06 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a disability of the digestive system claimed as gastroenteritis, to include as secondary to service-connected major depressive disorder and/or the medications taken for service connected disabilities. 2. Entitlement to an initial evaluation in excess of 10 percent for tendonitis of the right Achilles from August 3, 2001 to December 4, 2007 and in excess of 20 percent therefrom. 3. Entitlement to an initial evaluation in excess of 10 percent for tendonitis of the left Achilles. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from August 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) in September 2011. A transcript of this hearing is in the claims folder. Unfortunately, the Veterans Law Judge who conducted this hearing has since retired from the Board. The Veteran was notified of this in a March 2013 letter and was given 30 days to indicate whether he desired a new hearing. He did not reply, and as indicated in the letter the Board will assume he does not desire another hearing and will proceed with adjudication of his appeal. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. These matters were previously before the Board in October 2006, July 2009, December 2011, and May 2013 but were remanded for additional development. The requested development has been completed, and the appeals have been returned to the Board for further consideration. The December 2011 Board decision noted that the Veteran's representative had raised the issue of entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). This matter was referred to the RO for appropriate action, but a review of the record indicates that it has not been addressed. However, the record further reflects that the Veteran was awarded a 100 percent evaluation for his service connected major depressive disorder in an April 2013 rating decision. Moreover, this rating decision also awarded the Veteran special monthly compensation based on having one disability evaluated as 100 percent disabling and additional service connected disabilities that were independently ratable at 60 percent or more. See 38 C.F.R. § 3.350(i) (2013). Therefore, as an award of TDIU cannot result in any additional benefit to the Veteran, this matter is now moot, and no further action is required by the RO. See Bradley v. Peake, 22 Vet. App. 280 (2008). FINDINGS OF FACT 1. The preponderance of the medical evidence, to include competent medical opinions, shows that the Veteran does not have a current diagnosis of a chronic disability of the digestive system. 2. Prior to December 4, 2007, the Veteran's right ankle had full range of motion with no additional limitations due to pain, weakness, incoordination or fatigability on repetitive use; the disability was no more than moderate. 3. From December 4, 2007, the Veteran has retained approximately half of the normal range of motion of the right ankle, with no additional limitations due to pain, weakness, incoordination or fatigability on repetitive use; the limitation of motion was no more than moderate, and overall impairment no more than moderately severe without actual loss of use of the foot. 4. The Veteran's Achilles tendonitis of the left ankle ids manifest by no more than moderate impairment, with full or near full range of motion that is not decreased with due to pain, weakness, incoordination or fatigability on repetitive use. CONCLUSIONS OF LAW 1. A disability of the digestive system claimed as gastroenteritis, to include as secondary to service-connected major depressive disorder and/or the medications taken for service connected disabilities, was not incurred due to active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2013). 2. The criteria for an initial evaluation in excess of 10 percent for tendonitis of the right Achilles from August 3, 2001 to December 4, 2007 and in excess of 20 percent therefrom have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Codes 5003, 5024, 5270, 5271, 5272, 5273, 5274, 5284 (2013). 3. The criteria for an initial evaluation in excess of 10 percent for tendonitis of the left Achilles have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Codes 5003, 5024, 5270, 5271, 5272, 5273, 5274, 5284 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Regarding the claim for service connection, in an initial letter dated August 2001 and numerous subsequent letters, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), in a September 2007 letter, as well as in other letters. Although this portion of the notification was not received until after the initial adjudication of the claim, this does not result in any harm to the Veteran, as his claim has been readjudicated since receipt of the notification. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The appeals for increased evaluations for tendonitis of the Achilles tendon arise from a disagreement with the initial evaluations following the grant of service connection. The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted the claim is substantiated, and additional VCAA notice is not required; thus 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 Board concludes that the duty to notify has been met. The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Relevant private records, service treatment and other medical records have been associated with the claims file. Records have been obtained from the Social Security Administration (SSA). The Veteran has been afforded numerous VA examinations. The May 2013 remand was ordered to ensure the adequacy of the Veteran's examinations, and the development requested regarding the examinations has been satisfactorily completed. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). The Board notes that, at the September 2011 hearing, the presiding VLJ made certain the Veteran was aware of the issue before the Board. The Board then remanded the case to obtain additional records. In light of these factors, the Board finds the duties imposed by Bryant were met. The Board concludes that the duty to assist has been met. Service Connection The Veteran contends that he has developed a disability of the digestive system, which he claims to be gastroenteritis. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran does not have a diagnosis of a disability listed at 38 C.F.R. § 3.309 and he does not claim to have a disability on this list. The Veteran further contends that his disability of the digestive system was either caused or aggravated by either his service connected major depressive disorder or the medication used to treat his other service connected disabilities. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In a claim for secondary service connection for a diagnosis clearly separate from the service-connected disorder, the veteran must present evidence of a medical nature to support the alleged causal relationship between the service-connected disorder and the disorder for which secondary service connection is sought. See Jones v. Brown, 7 Vet. App. 134 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board finds that entitlement to service connection for a disability of the digestive system claimed as gastroenteritis is not established. Although the Veteran has been seen for epigastric complaints on a few occasions during the past decade, the evidence does not show that he has the chronic disability of the digestive system that is necessary for service connection. Instead, it appears he was seen on a few occasions for complaints that represented an acute and transitory condition. The service treatment records are negative for gastrointestinal complaints, and for diagnoses of a gastrointestinal disability. The October 1966 separation examination was normal, and the Veteran denied having frequent indigestion and stomach, liver, and intestinal problems on the Report of Medical History obtained at that time. The initial evidence of a gastrointestinal disability is found in post service VA treatment records dated in March 2000. In these records the Veteran reported a history of vomiting clear material and food four days prior to treatment. He had crampy epigastric abdominal pain without fever, chills, dizziness or other symptoms. The vomiting had stopped two days prior to treatment. He denied melena, hematochezia, hematemesis, diarrhea or constipation. The impression was gastroenteritis, nonspecific, resolved. The plan was that the Veteran would be monitored for evidence of significant disease, and discharged if such evidence was lacking. The hospital record shows that the Veteran did not experience any vomiting or other symptoms during his admission. An upper gastrointestinal series completed at this time was negative, and the Veteran was discharged home at the end of 12 hours of monitoring. The Veteran submitted his claim for service connection in August 2001. At an April 2002 general VA examination, the Veteran reported recurrent gastroenteritis since 1955, which he believed to be stress related. He treated it with herbs. There were no relevant findings on examination, and the diagnostic assessment was gastroenteritis, stress related, not related to service. A July 2007 addendum to the Veteran's treatment for a back disability includes a gastrointestinal examination. This examination was negative for nausea and vomiting, and all findings were normal. A December 2007 VA examination includes a history from the Veteran in which he stated that he first began developing gastroenteritis in the form of diarrhea, abdominal pain, flatulence, and eructation during active duty, but he could not recall exactly when those symptoms started. The examiner noted that this history was not supported by the service treatment records. The Veteran explained that his symptoms had been intermittent over the years. The impression was gastroenteritis. In an October 2007 questionnaire received from the SSA, the Veteran indicated that he took a medication for his stomach because of the effects of his other medications, but he could not remember the name of the drug. A June 2010 VA orthopedic examination notes the Veteran said that a side effect from his medications was that he would experience an upset stomach if he did not eat. The Veteran was afforded a VA examination of his stomach in March 2012. The examiner answered "yes" when asked if the Veteran had or has ever had any stomach condition. This diagnosis was "gastroenteritis, resolved" dated 2000. The examiner answered the questions posed by the December 2011 remand, and opined that the Veteran's currently diagnosed gastroenteritis was not caused or aggravated by his service connected disabilities. He concluded his rationale with the following statement: "Furthermore, gastroenteritis is usually an acute condition that resolves with time. The gastrointestinal condition he has is more of a chronic one ongoing for years which has not been diagnosed." The examiner further observed that the mainstream literature failed to support a finding that gastroenteritis was caused or aggravated by major depression. The examiner observed that if the gastrointestinal problems were indeed aggravated by the Veteran's psychiatric disability, then one would expect daily episodes of gastroenteritis, which was not the case here. The Veteran was afforded a VA examination for intestinal conditions in May 2013. The claims folder was reviewed by the examiner. When asked if the Veteran now had or had ever been diagnosed with an intestinal condition, the examiner answered "no." The examiner stated that there was no medical documentation of a gastrointestinal condition, and that the Veteran complained only of excessive gas at the current examination. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by active service. He further opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service connected disabilities. For both opinions, the rationale was "NO MEDICAL DOCUMENTATIONB (sic) OF CHRONIC GI PROBLEMS AT ANY TIME." The preponderance of the evidence shows that the Veteran does not have a chronic gastrointestinal disability. The evidence shows that the he has been treated on only a single occasion in March 2000 for complaints of nausea and vomiting. The final impression was gastroenteritis, nonspecific, resolved, and after a period of observation failed to note anything relevant he was discharged. He did not submit a claim for service connection until approximately a year and a half after this event. Examinations conducted subsequent to the Veteran's claim have included diagnoses of gastroenteritis, but these were clearly based on the history as reported by the Veteran, because none of these examinations reflect any contemporaneous findings. The December 2011 VA examiner provided a negative opinion pertaining to a relationship to service, and further noted gastroenteritis was usually an acute condition. Instead, this examiner raised the possibility of an undiagnosed condition. In response to this statement, the Veteran was provided the most recent examination in May 2013, at which time a second examiner again provided a negative opinion. The basis for this opinion was that there was no documentation of a chronic gastrointestinal problem at any time. This is consistent with the December 2011 examiner's observation that gastroenteritis was usually an acute condition, and is also consistent with the total absence of any objective evidence to confirm the existence of a chronic disability. The May 2013 examiner based this opinion on a review of the claims folder, the Veteran's VA records, and an examination and interview with the Veteran. There is no competent opinion that contradicts the May 2013 examiner. In the absence of confirmation that the Veteran has or has ever had a chronic gastrointestinal disability, service connection may not be established. Degmetich v. Brown, 104 F.3d 1328 (1997). In reaching this decision, the Veteran's sincere belief that he has a chronic gastrointestinal disability that is attributable to either service or a service connected disability is acknowledged. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, although the Veteran is competent to report his gastrointestinal symptoms, he is not competent to conclude that they represent a chronic gastrointestinal disability as opposed to occasional acute episodes of gastrointestinal distress. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The preponderance of the competent medical evidence holds that the Veteran does not currently have a chronic gastrointestinal disability, and it follows that his claim must fail. Increased Evaluations The Veteran contends that the initial evaluations assigned for his Achilles tendon disabilities are inadequate to reflect the impairment they produce. He argues that his disabilities are very painful and should be rated as severe. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Board notes that these issues involve the Veteran's dissatisfaction with the initial rating for his disabilities assigned following the grant of service connection. The Court has found that there is a distinction between a Veteran's disagreement with the initial rating assigned following a grant of service connection, and the claim for an increased rating for a disability in which entitlement to service connection has previously been established. In instances in which the Veteran disagrees with the initial rating, the entire evidentiary record from the time of the claim of service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to service connection for right and left Achilles tendonitis was established in a May 2002 rating decision. A 10 percent evaluation was assigned for each of these disabilities, effective from the date of the Veteran's August 3, 2001 claim, and this evaluation remains in effect for the tendonitis of the left Achilles. A March 2008 rating decision increased the evaluation for the Achilles tendonitis of the right foot to 20 percent, effective from December 4, 2007. As the Veteran has not expressed satisfaction with this evaluation, it remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's tendonitis of the Achilles is evaluated under the rating code for tenosynovitis. This rating code states that tenosynovitis is to be rated on limitation of motion of the affected parts as degenerative arthritis. 38 C.F.R. § 4.71a, Code 5024. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Code 5003. The normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion, with a neutral position of zero degrees. 38 C.F.R. § 4.71a, Plate II. Additionally, severe foot injuries are evaluated as 30 percent disabling. Moderately severe foot injuries are evaluated as 20 percent disabling. Moderate foot injuries are rated as 10 percent disabling. A note adds that actual lose of the use of the foot is rated as 40 percent disabling. 38 C.F.R. § 4.71a Code 5284. Another potentially applicable rating code is that for limited motion of the ankle. Marked limitation of motion is 20 percent disabling, and moderate limitation of motion is 10 percent disabling. 38 C.F.R. § 4.71a, Code 5271. Other rating codes of the ankle either require ankylosis or a malunion of the os calcis or astragalus, which has not been shown by the evidence. See 38 C.F.R. § 4.71a, Codes 5270, 5272-5274. There are other factors which must be considered in addition to those contained in the applicable rating code. The Board recognizes that the disability of the musculoskeletal system is primarily the inability due to damage or an infection in parts of the system to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Factors to be considered include pain on movement, weakened movement, excess fatigability, and incoordination. 38 C.F.R. §§ 4.40, 4.45. Functional impairment due to pain must be considered. 38 C.F.R. § 4.59. An October 2001 VA treatment notes indicated that the Veteran had a bilateral "severe" case of tendo Achilles tendonitis since August 2001. He was doing a little better but still had some residual pain and tenderness in both tendons. He was advised to either change jobs or find a way not to irritate his tendonitis by going up and down the stairs. An April 2002 VA examination noted positive tenderness over the heel and tendon area bilaterally, more so on the right than the left. Range of motion was normal and there was no weakness. The examiner added that range of motion was obtained with consideration of pain, fatigue, weakness, lack of endurance, incoordination, and altered by repetition. The Veteran was seen for an orthopedic consultation in February 2004, where he complained of pain around the Achilles tendon, more on the right than the left. The range of motion was normal, although he complained of pain in the Achilles tendon when this was done. March 2006 records show the Veteran continued to use orthotics with good results. At a February 2007 podiatry consultation, the Veteran reported chronic right foot pain with history of Achilles tendonitis. His condition was exacerbated with the prolonged periods of weightbearing inherent in his job. His orthoses helped with the symptoms. The Veteran reported on a December 2007 VA examination that his bilateral tendonitis was typically aggravated by walking and weightbearing. The pain had become progressively worse over the years. He reported several flare-ups of short duration throughout a typical day, but the additional loss of range of motion could not be estimated without speculation. Foot examination showed no abnormal weightbearing. The Achilles tendons were tender bilaterally, but were in proper alignment. Range of motion of the right ankle by goniometry was 20 degrees of flexion with pain at 20 degrees. Dorsiflexion was to 10 degrees with pain at 10 degrees. The left ankle had 35 degrees of flexion and 15 degrees of dorsiflexion with no pain. There was no additional loss of motion due to pain, weakness, fatigue, incoordination or lack of endurance following repetitive use. The impression was degenerative joint disease of both ankles, and Achilles tendonitis. An X-ray study showed a sharp calcaneal spur in the right ankle, with degenerative changes in both ankles. The Veteran estimated his pain to be 5-6 out of 10 in his right ankle and 4-5 out of 10 in his left ankle at a March 2010 VA examination. There were no flare-ups, and no evidence of fatigability or lack of endurance. There was objective evidence of Achilles tendon tenderness on mild palpation. The diagnoses were right Achilles tendonitis, moderate to moderately severe and left Achilles tendonitis, moderate. On a June 2010 VA examination, the Veteran had standing limitations of 15 to 30 minutes, and a functional limitation of walking of less than a quarter of a mile. He always used orthotics. Right dorsiflexion was to 10 degrees, and right plantar flexion was to 25 degrees. Left dorsiflexion was to 20 degrees, and left plantar flexion was to 40 degrees. There was no objective evidence of pain following repetitive motion, and no additional limitations after three repetitions of motion. There was also no ankylosis. A March 2012 VA examiner characterized the Veteran's bilateral Achilles pain and tenderness as moderate for both ankles. On a May 2013 VA examination, the Veteran reported severe pain in his bilateral Achilles tendons. The range of motion could not be assessed due to patient guarding. An addendum stated that the Veteran had pain on use of his feet. There was also weakness and fatigue, but no flare-ups. The condition was described as moderate. The Veteran did not have functional impairment of an extremity such that an effective function remained other than that which would be equally well served by an amputation with prosthesis. Right Ankle to December 4, 2007 Entitlement to an evaluation of more than 10 percent for the Veteran's right ankle disability prior to December 4, 2007 is not shown. The Board has considered the October 2001 examiner's description of the tendonitis as "severe," but while the examiner's description is important it is not controlling. See 38 C.F.R. § 4.2. The evidence taken as a whole does not meet the criteria for a higher evaluation under any of the applicable rating codes. The right ankle had full or near full range of motion in each examination during this period. These examinations also found that there was no additional impairment due to pain, weakness, fatigability or incoordination. In view of these objective findings, the Veteran's disability is more appropriately described as moderate under the rating code for foot injuries. This merits continuation of the 10 percent evaluation. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a Code 5284. The use of other rating codes has been considered, but in view of the absence of objective evidence of limitation of motion, a rating under the motion for limited motion of the ankle is not useful. 38 C.F.R. § 4.71a, Code 5271. There was no evidence of ankylosis or malunion. 38 C.F.R. § 4.71a, Codes 5270, 5272, 5273, 5274. Right Ankle from December 4, 2007 The evidence does not support an evaluation in excess of 20 percent for the Veteran's right Achilles tendonitis from December 4, 2007. The Veteran's primary symptom during this time was pain and tenderness of the Achilles tendon. The examination conducted on December 4, 2007 shows that the range of motion of the right ankle was 20 degrees of flexion with pain at 20 degrees and 10 degrees of dorsiflexion with pain at 10 degrees. In June 2010 he had right dorsiflexion to 10 degrees, and right plantar flexion to 25 degrees. Each of these examiners found no additional loss of motion due to pain, weakness, fatigue, incoordination or lack of endurance following repetitive use, and while the May 2013 VA examiner reported weakness and fatigue, the Veteran did not allow range of motion testing. The March 2012 and May 2013 examiners described the Veteran's disability as moderate which, considering that the loss of range of motion is approximately half of normal, is accurate. The Veteran is already evaluated at the moderately severe level under the rating code for other injuries to the foot. 38 C.F.R. § 4.71a, Code 5284. A 20 percent evaluation is the highest available under the rating code for limited motion of the ankle. 38 C.F.R. § 4.71a, Code 5271. The other rating codes have been considered, but there was no evidence of ankylosis or malunion. 38 C.F.R. § 4.71a, Codes 5270, 5272, 5273, 5274. Left Ankle The evidence does not support entitlement to an evaluation greater than 10 percent for the left ankle for any portion of the period on appeal. As with the right ankle, the Board has considered the October 2001 examiner's description of the tendonitis as "severe," but this description does not comport with the remainder of the evidence. The Veteran had full or near full range of motion of the left ankle in April 2002, February 2004, December 2007, and June 2010. There was no additional loss of motion due to pain, weakness, fatigue, incoordination or lack of endurance following repetitive use. These findings comport to the moderate level of severity reported in March 2012 and May 2013. This results in a 10 percent rating under both the rating criteria for limited motion of the ankle and other foot injuries. 38 C.F.R. § 4.71a, Codes 5271, 5284. There was no evidence of ankylosis or malunion that would support a higher evaluation under a different rating code. 38 C.F.R. § 4.71a, Codes 5270, 5272, 5273, 5274. Other Considerations Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or to the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. The schedular criteria adequately describe the Veteran's symptoms for his Achilles tendonitis. These symptoms include limitation of motion and pain, all of which are provided for in the rating criteria. Moreover, even if the scheduler criteria were to prove inadequate, there is no record of marked interference with employment due to these service connected disabilities. He has not been hospitalized for this disability. The 2001 records show that the Veteran was advised to avoid the stairs at work, but the Veteran is currently unemployable due to other disabilities. He is able to perform all activities of daily living. Accordingly, referral for consideration of an extra-schedular rating is not warranted. As noted in the introduction, consideration of TDIU would be moot. See Bradley v. Peake, 22 Vet. App. 280 (2008). ORDER Entitlement to service connection for a disability of the digestive system claimed as gastroenteritis, to include as secondary to service-connected major depressive disorder and/or the medications taken for service connected disabilities is denied. Entitlement to an initial evaluation in excess of 10 percent for tendonitis of the right Achilles from August 3, 2001 to December 4, 2007 and in excess of 20 percent therefrom is denied. Entitlement to an initial evaluation in excess of 10 percent for tendonitis of the left Achilles is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs