Citation Nr: 1335611 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 06-26 922 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for service-connected residuals of a right ankle injury including degenerative joint disease, during the period from February 1, 2013, currently rated 20 percent disabling. 2. Entitlement to a total disability rating based on individual employability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1975. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the RO in St. Louis, Missouri. In a February 2007 rating decision, the RO granted an increased 20 percent rating for service-connected residuals of a right ankle injury to include degenerative joint disease, effective from July 26, 2005 (the date of his claim for an increased rating). This claim for an increased rating remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (a Veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise). The Board remanded the case for additional development in November 2010 and April 2012. Then, in a March 2013 decision and remand, the Board denied an increase in a 20 percent schedular rating for the right ankle disability during the period prior to November 2, 2012, and denied an increase in a 10 percent rating for a service-connected left thumb disability. These issues are no longer in appellate status. The Board also remanded the issue of entitlement to an increased rating for residuals of a right ankle injury to include degenerative joint disease during the period after November 2, 2012 to the Appeals Management Center (AMC) for a VA examination and ongoing treatment records. On remand, in a May 2013 rating decision, the AMC granted a temporary total rating for convalescence (see 38 C.F.R. § 4.30) for the service-connected right ankle disability, effective from November 2, 2012, the date of a right ankle fracture, with a 20 percent schedular rating effective from February 1, 2013, the first day of the month following the date the evidence showed that his weight bearing restriction was lifted and his convalescence period ended. In its May 2013 decision, the AMC also granted service connection and a 10 percent rating for residual scars of the right ankle, effective November 16, 2012 (the date of right ankle surgery). Since the Veteran did not appeal the rating or effective date assigned for this scar disability, this claim is not in dispute. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The case was subsequently returned to the Board. In a September 2013 informal hearing presentation, the Veteran's representative contended that the Veteran was unemployable due to his service-connected right ankle disability, and that the issue of a total disability compensation rating based on individual unemployability (TDIU) has been raised as part of the appeal for an increased rating for the service-connected right ankle disability, citing Rice v. Shinseki, 22 Vet. App. 447 (2009). The examiner referred to the findings in a recent May 2013 VA examination. The Board notes that a prior claim for a TDIU was denied in an unappealed February 2007 rating decision. However, in light of the recent assertions by the Veteran's representative and the findings on VA examination in May 2013, the Board finds that the record now raises the question of whether the Veteran is unemployable due to his service-connected disabilities (currently residuals of a right ankle injury including degenerative joint disease, residuals of a left thumb fracture with osteoarthritis, pseudofolliculitis barbae, and residual scars associated with residuals of a right ankle disability), and that there is a derivative claim for a TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to a TDIU is part and parcel of the appeal for an increased rating. Rice, supra. This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. During the rating period on appeal, i.e., since November 2, 2012, the Veteran's service-connected residuals of a right ankle injury with degenerative joint disease has been rated as 100 percent disabling (a temporary total rating for convalescence under 38 C.F.R. § 4.30) from November 2, 2012 until February 1, 2013. 2. During the period from February 1, 2013, the Veteran's residuals of a right ankle injury with degenerative joint disease were manifested by pain with marked limitation of motion, but not ankylosis. CONCLUSION OF LAW During the period from February 1, 2013, the criteria for a disability rating in excess of 20 percent for residuals of a right ankle injury, to include degenerative joint disease, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duty to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and readjudicating the claim, such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the VCAA duty to notify was satisfied by letters sent to the Veteran in August 2005 and March 2006. These letters informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. He was advised of the downstream disability rating and effective date elements of this claim in the post-adjudication March 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Additional notice was provided in a June 2008 letter as to the increased rating claim, which advised him of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disability has on his employment. The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific"). The appeal was most recently readjudicated in a May 2013 supplemental statement of the case. As the pleading party, the Veteran, not VA, has the evidentiary burden of proof of showing there is a VCAA notice error in timing or content and that the error is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). There is no such pleading or allegation in this instance. VA also fulfilled its duty to assist the Veteran with this claim by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO and AMC have obtained his service treatment records (STRs), VA outpatient treatment records, and records from the Social Security Administration (SSA), and arranged for VA compensation examinations to include in May 2012 and May 2013. These examinations are based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's right ankle disability as well as the functional impairments resulting therefrom. The examination reports are adequate for rating purposes. See 38 C.F.R. § 4.2. The Board further finds that the RO has substantially complied with its March 2013 remand orders. In this regard, the Board directed that additional treatment records be obtained and that VA examinations be conducted. Additional VA treatment records have been associated with the claims file, and a VA examination was conducted in May 2013. Therefore, the Board finds that no further development is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, 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 this claim. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt is resolved in the Veteran's favor. 38 C.F.R. § 4.3. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, in a claim for increased rating, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran seeks entitlement to an increased schedular disability rating in excess of 20 percent for residuals of a right ankle injury, to include degenerative joint disease, during the period since February 1, 2013, after the termination of his temporary 100 percent rating for convalescence (which began on November 2, 2012). Historically, service connection was established for a disability then characterized as a right foot ganglion in a March 1976 rating decision, rated 0 percent disabling, effective August 1975. This condition was rated under Diagnostic Code 7819 as a benign skin neoplasm. In July 2005, the Veteran filed the instant claim for an increased rating. An October 2005 rating decision continued the non-compensable disability rating. A July 2006 rating decision recharacterized the Veteran's service connected disability as residuals of a right ankle injury to include degenerative joint disease. 38 C.F.R. § 4.13. It was noted that a right foot ganglion was initially the only identified residual of the Veteran's in-service ankle sprains but since then medical evidence established that degenerative joint disease was directly related to the in-service ankle strains. The Veteran was assigned a 20 percent disability rating, under Diagnostic Code 5010-5271 pertaining to traumatic arthritis and limited motion of the ankle, effective July 26, 2005, the date of the Veteran's increased rating claim. The Veteran's right ankle disability currently is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27 (2012). The first four digits, 5010 in this case, is the diagnostic code for the disability. Id. The second four digits after the hyphen, 5271 in this case, is the diagnostic code used to rate the residuals of that disability. Id. According to Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). When, however, the limitation of motion is non-compensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings will not be combined with ratings based on limitation of motion. Id. Under 38 C.F.R. § 4.45(f), for the purpose of rating disability from arthritis, the only major joints are the shoulder, elbow, wrist, hip, knee and ankle. Additionally groups of multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities; the interphalangeal, metatarsal and tarsal joints of the lower extremities; the cervical vertebrae; the dorsal vertebrae; and the lumbar vertebrae, are considered groups of minor joints, ratable on parity with major joints. 38 C.F.R. § 4.45(f) (2012). Diagnostic Code 5271 provides assignment of a 10 percent rating for moderate limited motion of the ankle, and a 20 percent rating for marked limited motion. 38 C.F.R. § 4.71a (2012). This specific Diagnostic Code does not provide for a rating in excess of 20 percent. The words "moderate" and "marked," as used in the various Diagnostic Codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2012). Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II (2012). On VA examination in May 2012, the Veteran complained of recurrent right ankle sprains, as well as right ankle pain, instability, and stiffness. He reported using a cane and brace for support. He could plantar flex his right ankle from 0 to 35 degrees, with pain at 20 degrees. He could dorsiflex his right ankle from 0 to 20 degrees with pain at 20 degrees. He had no additional limitation of motion following repetitive testing. He had full strength. The Veteran had tenderness to palpation, as well as demonstrated laxity of the right ankle to inversion/eversion stress. There was no evidence of ankylosis. The Veteran was diagnosed with degenerative arthritis of the right ankle which the examiner stated would preclude physically demanding work, as well as work that requires prolonged periods of standing. VA treatment records show that on November 2, 2012, the Veteran fell off a ladder, causing a right lateral talar dome fracture and a small avulsion fracture of the medial malleolus. On November 16, 2012, he underwent a right ankle arthroscopy with removal of fracture fragments. In a December 2012 statement, the Veteran reported that he was still under orthopedic care following his surgery and was unable to walk or work. On VA examination in May 2013, the examiner stated that the claims file was reviewed and a physical examination was performed. The examiner noted that the ankle was first injured in 1973 while he worked in the service as a physical education instructor. The ankle became progressively more painful, and in November 2012 he sustained a fracture to the same ankle after a fall from a ladder. The Veteran reported that there was constant pain of 10/10, and he took daily medication for this. The examiner diagnosed degenerative arthritis of the right ankle. On examination, range of motion of the right ankle was as follows. Plantar flexion was to 30 degrees, with painful motion beginning at 0 degrees, dorsiflexion (extension) was to 5 degrees, with painful motion beginning at 0 degrees. After repetitive-use testing, plantar flexion was to 30 degrees, and dorsiflexion was to 5 degrees. The examiner indicated that the Veteran did not have additional limitation in range of motion of the ankle following repetitive-use testing, and that the Veteran did have functional loss and/or functional impairment of the ankle, with less movement than normal, weakened movement, pain on movement, swelling, deformity, disturbance of locomotion, and interference with sitting, standing and weight-bearing. He had localized tenderness or pain on palpation of the joint/soft tissue of the right ankle. There was normal strength for right ankle plantar flexion and dorsiflexion. On stability testing, no laxity was noted. There was no ankylosis of the ankle, subtalar and/or tarsal joint. The examiner noted that the Veteran did not have current or past "shin splints," stress fractures, Achilles tendonitis, Achilles tendon rupture, or malunion of calcaneus (os calcis) or talus (astragalus), and he had never had a talectomy (astragalectomy). He did not have a total ankle joint replacement. On November 16, 2012, he had right ankle arthroscopy, synovectomy, debridement and removal of loose bodies, chondroplasty. He had residual signs and/or symptoms due to the ankle surgery, specifically pain, swelling, and trouble walking and standing. He occasionally used crutches or a cane. The examiner indicated that function of the right ankle/extremity was not so diminished that amputation with prosthesis would equally serve the Veteran. The examiner indicated that X-ray studies showed degenerative or traumatic arthritis of the right ankle. The examiner stated that the Veteran's ankle condition impacted his ability to work, noting that the Veteran was retired from the GSA as a transportation claims examiner. This retirement was reportedly prompted by ankle pain. After retirement he worked taking care of rental properties, and most of these properties were sold because he is unable to do the carpentry work required to keep these properties up. The examiner indicated that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that because the Veteran first injured his right ankle while on active duty which caused arthritis and a painful ankle. A fall after service in November 2012 was caused by the preexisting weakness and pain in the right ankle. Because of the current symptoms of pain, swelling, antalgic gait, required use of a cane, and loss of range of motion of the joint it is unlikely that the Veteran could work as a carpenter. Also of record are VA treatment records and records from the Social Security Administration (SSA); however, none of these records showed that the Veteran has ever had ankylosis of the right ankle or showed a disability picture different from that presented in detail in the Veteran's numerous VA examinations. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). A March 2013 VA orthopedic note reflects that the Veteran had a slow return to function but overall had been improving. He had completed physical therapy. He experienced swelling about the ankle and required nonsteroidal anti-inflammatories for pain relief. On examination, there was moderate ankle effusion, and tenderness to palpation, mostly of the lateral aspect of the talus. His range of motion was limited. Range of motion was to roughly 40 degrees of plantar flexion and he could reach neutral to dorsiflexion. He was otherwise neurovascularly intact in the extremities. His wounds had healed. An X-ray study showed an obvious osteochondral defect of the lateral shoulder of the talus. The diagnostic assessment was right ankle injury with osteochondral defect over the lateral shoulder of the talus status post ankle arthroscopy and loose body removal. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that during the period since February 1, 2013, i.e., after his convalescence from a November 2012 ankle fracture and subsequent surgery, the Veteran's service-connected right ankle disability is appropriately evaluated as 20 percent disabling, the maximum evaluation available under Diagnostic Code 5271 for limitation of motion of the ankle, as the competent evidence of record reflects that such disability is manifested by pain, instability, and marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). As the Veteran has been assigned the maximum allowable rating for limitation of motion of the right ankle, a higher rating may not be assigned for increased impairment of function upon repetitive movement under 38 C.F.R. §§ 4.40 and 4.45. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The Board has considered whether there are other appropriate diagnostic codes applicable to the Veteran's disability that would support the assignment of a rating higher than 20 percent. In this regard, it is again pointed out that the Veteran's service-connected disability has been recharacterized from right foot ganglion to degenerative joint disease of the ankle. This recharacterization was based on medical evidence establishing a connection between his in-service ankle sprains and current degenerative joint disease of the ankle. See May 2006 VA examination reports. As discussed, the most appropriate diagnostics codes are that of 5010 and 5271 which squarely address diagnosed degenerative joint disease and limitation of motion of the ankle, respectively. To the extent that Diagnostic Code 7819, benign skin neoplasms, is still applicable, it is noted that during a May 2006 VA compensation examination, the Veteran noted that the ganglion mass on the right anterolateral aspect of his right ankle had disappeared. There is no other evidence on file suggesting that his ganglion is productive of compensable symptoms. The Veteran's right ankle disability has not been productive of ankylosis of the right ankle; thus, Diagnostic Code 5270 does not apply. 38 C.F.R. § 4.71a (2012). This is the only diagnostic code for rating disabilities of the ankle under which a disability rating in excess of 20 percent can be assigned. The Veteran's representative has previously argued that the Veteran should be rated under Diagnostic Code 5284, which rates other injuries of the foot that are not rated by Diagnostic Codes 5276-5283. Under Diagnostic Code 5284, a 10 percent disability rating is assigned for moderate foot injuries, a 20 percent disability rating is assigned for moderately severe foot injuries, and a 30 percent disability rating is assigned for severe foot injuries. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). The Veteran's representative suggested that because the Veteran's complaints of pain and difficulty standing and walking encompass the feet as well as the ankle, the Veteran should be rated under Diagnostic Code 5284. However, the Board rejects this argument. The Veteran is service-connected for residuals of an ankle disability with degenerative joint disease. He can only be compensated for his service-connected ankle disability, which is rated under a diagnostic code specific to that particular joint. During a May 2006 VA examination, the examiner specifically addressed foot symptomatology to the extent that he pointed out that the Veteran had arthritis of the great toe, but discounted the significance of the findings as the Veteran's symptoms (e.g., pain and limitation of motion) stemmed from a different anatomical location, the ankle. As noted, there is no evidence suggesting symptoms stemming from his ganglion of the right foot. Symptoms from any non-service-connected foot disorder (such as pes planus) may not be used to evaluate the service-connected right ankle disability. See 38 C.F.R. § 4.14. Furthermore, even assuming for argument purposes that the Board were to rate the Veteran under Diagnostic Code 5284, the Veteran finds that the Veteran's disability is more appropriately characterized as moderately severe (rated as 20 percent disabling), rather than severe (rated as 30 percent disabling). While there is evidence that the Veteran experiences painful and limited motion due to his disability, his most recent VA examination reflects that he still retains considerable range of motion in his right ankle, and has no laxity. In summary, based on all the evidence of record, the Board finds that during the period since November 2, 2012, and after the termination of the 100 percent rating on February 1, 2013, a disability evaluation in excess of 20 percent for residuals of a right ankle injury, to include degenerative joint disease is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Extraschedular Consideration Finally, the Board has also considered whether the Veteran's right ankle disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, 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 and frequent periods of hospitalization. Id. at 116. If this is the case, 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 for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability level and symptomatology from his right ankle disability. The Veteran's reported difficulties of pain, weakness, swelling, and limitation of motion are not so exceptional or unusual a disability picture as to render impractical application of regular schedular standards. He merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected ankle disability that is unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is not required. See Thun, supra. ORDER Entitlement to a disability rating in excess of 20 percent for residuals of a right ankle injury, to include degenerative joint disease, from February 1, 2013 is denied. REMAND As noted above, the Board finds that the record reasonably raises the question of whether the Veteran is unemployable due to his service-connected disabilities, and that there is a derivative claim for a TDIU. See Roberson, supra; Rice, supra. This derivative TDIU claim needs to be further developed before being adjudicated, so the Board is remanding this derivative TDIU claim. See VAOGCPREC 6-96 (Aug. 16, 1996); VAOGCPREC 12-2001 (July 6, 2001). Additional information is needed to determine the degree of occupational impairment resulting from the Veteran's service-connected disabilities. See Beaty v. Brown, 6 Vet. App. 532 (1994). A total disability rating for compensation based on individual unemployability (a TDIU rating) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefit on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). In determining whether the Veteran is entitled to a TDIU rating, neither non-service-connected disabilities or advancing age may be considered. 38 C.F.R. § 4.19. In this regard, the Board observes that the Veteran has a non-service-connected psychiatric disorder, and some of the evidence suggests that it affects his employability. See February 1994 note by a private physician, K.S.B., D.O., indicating that the Veteran was diagnosed as bipolar in May 1987, and was deemed appropriate for medical retirement by a consulting psychiatrist. VA medical records reflect that the Veteran is unemployed. Currently, service connection is in effect for residuals of a right ankle injury including degenerative joint disease (rated 20 percent disabling), residuals of a left thumb fracture with osteoarthritis (rated 10 percent disabling), pseudofolliculitis barbae (rated 10 percent disabling), and residual scars associated with residuals of a right ankle disability (rated 10 percent disabling). In accordance with the combined ratings table of 38 C.F.R. § 4.25, the combined compensation rating for these disabilities is 40 percent since February 1, 2003. Therefore, the Veteran does not meet the percentage requirements of 38 C.F.R. § 4.16(a), for consideration of a TDIU rating on a schedular basis, although a TDIU on an extraschedular basis is still for consideration. See 38 C.F.R. § 4.16(b). The Board is precluded by law from assigning an extraschedular rating in the first instance, but may determine whether to refer a case for extra-schedular evaluation. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Barringer v. Peake, 22 Vet. App. 242 (2008). In light of the findings on VA examination in May 2013, the Board finds that a remand is required for the AMC to refer the issue of entitlement to a TDIU rating on an extraschedular basis to the Director of VA's Compensation and Pension Service, for consideration under 38 C.F.R. § 4.16(b). As the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See also Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). To receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The medical and other records on file, however, do not clearly indicate whether the Veteran is unemployable as a result of his service-connected disabilities. So a VA examination and opinion are needed to assist in making this important determination. Appropriate notice for TDIU should be provided on remand. 38 U.S.C.A. § 5103(a). The RO/AMC should also obtain relevant ongoing treatment records. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and therefore must be obtained if potentially relevant or determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative with appropriate notice regarding the derivative TDIU claim, and send him a TDIU application (VA Form 21-8940) and ask him to complete and return it. Ask him to provide the names and addresses of all VA or private medical care providers that have evaluated or treated him for service-connected disabilities since July 2005. With his authorization, obtain all identified records that are not already in the claims file. If attempts to obtain these records prove unsuccessful, and it is determined that further attempts would prove futile, then document this in the file and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(e). 2. Then, schedule the Veteran for a VA medical examination to determine the effect of his service-connected disabilities on his employability. The claims file must be provided to and reviewed by the examiner. Based on examination findings and other evidence contained in the claims file, the examiner must offer an opinion as to the likelihood (very likely, as likely as not, or unlikely) that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities. The examiner must consider the Veteran's level of education, experience, and occupational background in determining whether he is unable to secure or maintain substantially gainful employment in light of his service-connected disabilities. The examination report must include a complete rationale for all opinions and conclusions expressed. 3. Then, refer the Veteran's TDIU claim under 38 C.F.R. § 4.16(b) to the appropriate VA compensation and pension officials for extraschedular consideration. 4. Then readjudicate the derivative TDIU claim, in light of the additional evidence, including on an extraschedular basis. If the claim is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case and give them an opportunity to respond before returning the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs