Citation Nr: 1336114 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 13-17 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for the left ankle strain. 2. Entitlement to an initial disability rating in excess of 10 percent for the right ankle strain. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1955 to March 1967 and from April 1971 to March 1976. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which granted service connection for the bilateral ankle strains. The RO assigned each ankle an initial disability rating of 10 percent, retroactively effective from January 9, 2009, the date of the Veteran's new and material evidence claim. The Veteran then perfected timely appeals of the initial disability ratings assigned. In September 2013, the Veteran was afforded his requested videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Throughout the appeal, the Veteran's left ankle strain has been manifested by marked limitation of motion of the ankle, particularly when considering his pain and functional loss. 2. Throughout the appeal, the Veteran's right ankle strain has been manifested by marked limitation of motion of the ankle, particularly when considering his pain and functional loss. CONCLUSIONS OF LAW 1. The criteria for a 20 percent initial disability rating, but no higher, for the left ankle strain have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5299-5271 (2013). 2. The criteria for a 20 percent initial disability rating, but no higher, for the right ankle strain have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a, DCs 5299-5271 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's 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 evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). This appeal arises from the Veteran's disagreement with the initial ratings assigned following the grants of service connection for the bilateral ankle strains. As such, pertinent regulation provides that VA has no further obligation to provide notice under 38 U.S.C.A. § 5103 on this downstream element of the claims. See 38 C.F.R. § 3.159(b)(3)(1) (2013). In so providing, the courts have held that once service connection is granted, the claim is substantiated, further notice as to the "downstream" elements concerning the initial rating and effective date is not required, and any defect in the notice is not prejudicial. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006); see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, because the section 5103 notice provided in February 2009 before the grants of service connection for the bilateral ankle strains was legally sufficient, VA's duty to notify in this case is satisfied. See also Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, supra. In any event, the RO furnished the Veteran a Statement of the Case (SOC) that addressed the initial ratings assigned, included notice of the criteria for higher ratings for the service-connected bilateral ankle strains, and provided the Veteran with further opportunity to identify and submit additional information and/or argument, which the Veteran has done by perfecting his appeal. See 38 U.S.C.A. §§ 5103A, 5104(a), 7105 (West 2002). Under these circumstances, VA fulfilled its obligation to advise and assist the Veteran throughout the remainder of the administrative appeal process, and similarly accorded the Veteran a fair opportunity to prosecute the appeal. See Dunlap v. Nicholson, supra. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His STRs and post-service VA and private treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disabilities currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. Additionally, the Veteran has been afforded VA examinations, and the reports of those evaluations contain all findings needed to properly evaluate his disabilities. 38 C.F.R. § 4.2 (2013). The Board also finds no credible lay or medical evidence demonstrating or alleging an increased severity of the disabilities since the most recent VA examination in March 2013. Thus, there is no duty to provide further medical examination on the claims on appeal. See VAOPGCPREC 11-95 (Apr. 7, 1995). Furthermore, the Veteran was afforded a Board hearing in September 2013. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2013); Procopio v. Shinseki, 26 Vet. App. 76 (2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the Board hearing, the VLJ specifically noted the issues as "entitlement to an increased rating for a left ankle disability and for a right ankle disability, each evaluated as 10 percent disabling." See Board hearing transcript, page 2. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars (VFW). The VLJ asked the Veteran questions regarding the element of the claims that was lacking to substantiate the claims for benefits (i.e., a worsening of the ankles). The VLJ also asked questions to ascertain whether the Veteran had submitted evidence in support of these claims. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claims for benefits. As such, the Board finds that the VLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's hearing constitutes harmless error. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Initial Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. Separate DCs identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (2013). Where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The Veteran's service-connected bilateral ankle strains are currently rated, by analogy, under 38 C.F.R. § 4.71a, DC 5271. In this regard, if a Veteran has an unlisted disability, as in this case, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20; see 38 C.F.R. § 4.27 (2013) (providing specific means of listing DC for unlisted disease or injury). The Veteran is currently in receipt of a 10 percent initial disability rating for each ankle. He seeks higher disability ratings. DC 5271 provides ratings based on limitation of extension of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling. Marked limitation of motion of the ankle is rated as 20 percent disabling. A 20 percent rating is the maximum scheduler rating available under DC 5271. 38 C.F.R. § 4.71a. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II (2013). The Board notes that words such as "severe" and "moderate" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2013). Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2013). An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2013). In considering the other ankle codes, the Board notes that DC 5270 provides ratings for ankylosis of the ankle. Ankylosis of the ankle in planter flexion less than 30 degrees is to be rated 20 percent disabling. Ankylosis of the ankle in planter flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, is to be rated 30 percent disabling. Ankylosis of the ankle in planter flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity, is to be rated 40 percent disabling. 38 C.F.R. § 4.71a, DC 5270. Under DC 5272, ankylosis of the subastragalar or tarsal joint in a good weight-bearing position is rated as 10 percent disabling. Ankylosis of the subastragalar or tarsal joint in a poor weight-bearing position is rated as 20 percent disabling. A 20 percent rating is the maximum scheduler rating available under DC 5272. 38 C.F.R. § 4.71a. Under DC 5273, malunion of the os calcis or astragalus of the ankle with moderate deformity is rated as 10 percent disabling. Malunion of the os calcis or astragalus of the ankle with marked deformity is rated as 20 percent disabling. A 20 percent rating is the maximum scheduler rating available under DC 5273. 38 C.F.R. § 4.71a. Under DC 5274, an astragalectomy of the ankle is rated as 20 percent disabling. A 20 percent rating is the maximum scheduler rating available under DC 5274. 38 C.F.R. § 4.71a. Further, the provisions of 38 C.F.R. § 4.40 state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. 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 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the United States Court of Appeals for Veterans Claims (Court) clarified 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, 38-43 (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, at 592 (1991). Instead, in Mitchell, the 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 (38 C.F.R. § 4.40), 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 (38 C.F.R. § 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. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). In applying the above law to the facts of the case, the Board finds that the Veteran is entitled to higher disability ratings of 20 percent for each service-connected ankle strain. The lay and objective medical evidence shows that the Veteran's symptoms result in additional functional limitation to the extent that the Veteran's service-connected disabilities warrant higher disability ratings of 20 percent under DC 5271. 38 C.F.R. § 4.71a. The evidence of record establishes that the Veteran's ankles have been manifested by marked limitation of motion throughout the appeal period, particularly when considering the Veteran's pain and functional loss of the ankles. Specifically, the Veteran was afforded a VA joints examination in March 2013. At the examination, the Veteran's ranges of motion of the ankles were: plantar flexion limited to 40 degrees with objective evidence of pain beginning at 30 degrees; and, dorsiflexion (extension) limited to 15 degrees with objective evidence of pain beginning at 5 degrees. Following repetitive motion, his ranges of motion of the ankles dropped to 35 degrees of plantar flexion and 10 degrees of extension. At the examination, the Veteran reported flare-ups that impact the function of his ankles. Specifically, he described difficulty in moving his ankles due to severe pain. Following a review of the claims file and a physical examination of the Veteran, the VA examiner opined that the Veteran had an additional limitation of motion of approximately 5 to 10 degreees (more than the repetitive ranges of motion) in all of his ranges of motion of the ankles. In summary, based on the VA examiner's medical opinion and in giving the Veteran the benefit of the doubt, the Veteran's ranges of motion of the ankles, when considering his functional loss and painful motion following repetitive motion, would be: plantar flexion limited to 25 degrees (normal is 45 degrees); and, dorsiflexion (extension) limited to 0 degrees (normal is 20 degrees). The Board finds that this finding supports the conclusion that the Veteran's service-connected ankle disabilities are manifested by marked limitation of motion, and warrant higher disability ratings of 20 percent. 38 C.F.R. § 4.71a. This finding is also supported by the Veteran's limited ranges of motion at his VA examination in November 2009. At that examination, the Veteran described pain, decreased speed of the joint motion, and flare-ups in both ankles. During the flare-ups, he was unable to perform his activities of daily living. His ranges of motion of the ankles were: plantar flexion limited to 30 degrees; and, dorsiflexion (extension) limited to 15 degrees, with objective evidence of pain. Following repetitive motion of the left ankle, his ranges of motion dropped to: plantar flexion limited to 25 degrees; and, dorsiflexion (extension) limited to 10 degrees. Following repetitive motion of the right ankle, his ranges of motion dropped to: plantar flexion limited to 25 degrees; and, dorsiflexion (extension) limited to 15 degrees. The examiner found that the Veteran had objective evidence of pain following repetitive motion of the ankles. The examiner did not address the Veteran's functional loss of the ankles and its effect on his limitation of motion. Opinions from the Veteran's private medical providers also document the Veteran's constant pain and swelling of the ankles. In particular, in June 2009, Dr. Q., following a physical examination of the Veteran, found that the Veteran's ankles were manifested by "chronic, persistent, and severe" pain. Similarly, in August 2009, Dr. L. determined that the Veteran's ankles displayed pain and swelling on ranges of motion of the ankles. At his Board hearing, the Veteran testified to experiencing constant pain and swelling of his ankles. He stated that he could not walk far on his ankles. The Veteran was afforded additional VA medical opinions in May 2009 and December 2009, but the ranges of motion of his ankles were not provided. Therefore, based on the aforementioned evidence and in giving the Veteran the benefit of the doubt, the Board finds that the evidence of record demonstrates that the Veteran's ankles have been manifested by marked limitation of motion throughout the entire appeal period, particularly when his functional loss and pain are considered. Higher 20 percent disability ratings are assigned for his service-connected bilateral ankle strains throughout the entire appeal period. 38 C.F.R. § 4.71a, DC 5271. The claims are granted. However, the Board finds that disability ratings in excess of 20 percent are not warranted. Under DCs 5271, 5272, 5273, and 5274, the Veteran is currently in receipt of the maximum schedular 20 percent rating for his service-connected bilateral ankle strains. 38 C.F.R. § 4.71a. Under DC 5270, the evidence of record does not establish that the Veteran has ankylosis of his ankles. Specifically, at both VA compensation examinations, the Veteran had ranges of motion in his ankles, albeit limited. This establishes that the Veteran does not have ankylosis of his ankles. The March 2013 VA examiner also made a specific finding that the Veteran did not have ankylosis of his ankles. Thus, the Veteran is not entitled to higher ratings under DC 5270. The evidence of record does not establish that the Veteran is entitled to disability ratings in excess of 20 percent for his service-connected bilateral ankle strains. 38 C.F.R. § 4.71a. The Board has also considered the application of the remaining DCs under the current version of the regulation in an effort to determine whether a higher rating may be warranted for the Veteran's bilateral ankle strains, but finds none are raised by the medical evidence. Furthermore, the Veteran's symptoms do not appear to have changed significantly during this initial rating period so as to warrant staged ratings for his ankles. Fenderson, 12 Vet. App. at 126. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's competent and credible belief that his service-connected ankles are worse than the assigned ratings, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings. Also, as stated above, the rating criteria are specific in indicating that some of the criteria must be objectively demonstrated. In sum, the schedular criteria for disability ratings of 20 percent, but no higher, for the Veteran's service-connected bilateral ankle strains, have been met since the effective date of service connection. The preponderance of the evidence is against the assignment of disability ratings in excess of 20 percent for the service-connected bilateral ankle strains at any time during the appeal period. Thus, initial 20 percent ratings are assigned since the effective date of service connection, and the claims of entitlement to initial disability ratings higher than 20 percent for the service-connected bilateral ankle strains, are denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Extraschedular and TDIU Consideration The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2013). However, the regulations also provide for exceptional cases involving compensation. Pursuant to 38 C.F.R. § 3.321(b)(1) (2013), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then a Veteran's disability picture is contemplated by the rating schedule. The assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Here, because the schedular ratings of 20 percent for the Veteran's service-connected bilateral ankle strains fully address his symptoms, which include mainly pain, swelling, and limitation of motion, referral to the VA Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of extraschedular evaluations is not warranted. The evidence of record does not establish that his ankles prevent him from being employed or have required frequent hospitalizations. At the recent March 2013 VA examination, the examiner found that the Veteran's service-connected ankles impact, but do not prevent, his ability to work. Specifically, the examiner determined that the Veteran had "mild to moderate restriction in his ability to secure and maintain substantially gainful sedentary employment." The examiner also concluded that the Veteran had "moderate to severe restriction in his ability to secure and maintain substantially gainful employment." This evidence establishes that the Veteran's service-connected ankles limit, but do not prevent, his ability to work. At the VA examination, the Veteran also denied any hospitalizations for his ankles. The remaining medical evidence does not provide contrary evidence. Thus, there is no evidence that the Veteran's service-connected disabilities cause impairment that is not contemplated by the schedular rating criteria or that renders impractical the application of the regular schedular standards. See Thun, 22 Vet. App. at 111. Accordingly, referral of this case for consideration of extraschedular ratings is not warranted. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. As stated above, at the recent March 2013 VA examination, the examiner found that the Veteran had "mild to moderate restriction in his ability to secure and maintain substantially gainful sedentary employment." The examiner also concluded that the Veteran had "moderate to severe restriction in his ability to secure and maintain substantially gainful employment." The remaining medical evidence does not provide contrary evidence. Thus, the evidence of record does not support the claim of unemployability due to the Veteran's service-connected ankles. Consideration of a TDIU is not warranted. ORDER Entitlement to an initial disability rating of 20 percent, but no higher, for the left ankle strain is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. Entitlement to an initial disability rating of 20 percent, but no higher, for the right ankle strain is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. ___________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs