Citation Nr: 1327846 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 07-32 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus (DM). 2. Entitlement to service connection for hepatitis C. 3. Entitlement to an increased disability rating in excess of 10 percent for residuals of a right fibular fracture with right ankle strain (right ankle disability). 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to a service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1973 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's claims file was subsequently transferred permanently to Los Angeles, California. As such, the Los Angeles RO is the current agency of original jurisdiction (AOJ) in this case. The Veteran submitted a Notice of Disagreement (NOD) with the May 2006 rating decision in October 2006, and perfected his appeal in September 2007. The Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge in January 2010. A written transcript of that hearing was prepared and incorporated into the evidence of record. In July 2010, the Board remanded the issues on appeal for further examination. This development has now been completed and the claims on appeal are ready for review. In a November 2011 rating decision, the RO increased the Veteran's disability rating for residuals of a right fibular fracture with right ankle strain to 10 percent, effective March 9, 2005. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that there are additional VA treatment records related to the Veteran's claims on appeal. These records have been reviewed and considered by the Agency of Original Jurisdiction and will be considered by the Board. At the August 2010 VA examination, the Veteran reported that he was unable to maintain a job due to leg and ankle pain. The Board interprets this statement as raising a claim for a total disability rating based on individual unemployability due to a service-connected disability. The RO has not expressly developed or adjudicated that issue. Nevertheless, a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447 (2009). When, as here, evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part of the claim for benefits for the underlying disability. Here, the Veteran raised the issue of entitlement to TDIU while challenging the rating for his service-connected residuals of a right fibular fracture with right ankle strain. Therefore, his TDIU claim is part of the increased rating claim for residuals of a right fibular fracture with right ankle strain, and the Board has jurisdiction over these issues. The issues of service connection for diabetes mellitus and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran's currently diagnosed hepatitis C is related to his active service. 2. The Veteran's residuals of a right fibular fracture with right ankle strain are manifested by pain and limitation of motion that amounts to no more than a moderate ankle disability. 3. The competent and probative medical evidence of record does not show that the Veteran's service-connected residuals of a right fibular fracture with right ankle strain are so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for hepatitis C have been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. The criteria for an increased disability rating in excess of 10 percent for residuals of a right fibular fracture with right ankle strain have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 4.71a, Diagnostic Code 5262, 5270-5274 (2012). 3. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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 in accordance with 38 C.F.R. § 3.159(b)(1). 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). Here, the duty to notify was satisfied by way of letters sent to the Veteran in June 2005 and February 2006 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letters informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. The Veteran was supplied with notice of the type of evidence necessary to establish an effective date or higher rating by letter dated February 2010. Although this letter was delivered after the initial denial of the claims, the AOJ subsequently readjudicated the claims based on all the evidence in the March 2012 supplemental statement of the cases (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the Veteran was not precluded from participating effectively in the processing of his claims and the late notice did not affect the essential fairness of the decision. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical records, Social Security Disability records, hearing testimony, and lay statements have been associated with the record. Furthermore, the Veteran was afforded a VA medical examinations in August 2010. An additional VA opinion was also obtained in December 2011. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral arguments in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's increased rating and service connection claims. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating and service connection. The VLJ questioned the Veteran as to any pertinent evidence not currently associated with the claims file, to include specific treatment he received for his claimed conditions. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that no further action pursuant to Bryant is necessary. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Additionally, the Veteran submitted a March 2012 expedited processing form, which states that the Veteran did not have any additional evidence regarding the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. 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). II. Service Connection Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). However, the absence of a documented disability while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Certain listed disabilities may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Hepatitis C The Veteran contends that service connection is warranted for hepatitis C because he was exposed to several risk factors during service. The Veteran reported such risk factors as air gun inoculations and being pricked with used needles while performing his job as a medical assistant in-service. The Veteran also asserts that he treated service members who had been exposed to Agent Orange in Vietnam as part of his in-service duties as a medical assistant in Germany. The evidence of record indicates that the Veteran has a diagnosis of hepatitis C. Specifically, post-service VA treatment records reflect a diagnosis of hepatitis C during treatment from October 2003 to January 2004 and from January 2005 through April 2005. The determinative issue is whether the Veteran's hepatitis C began in service or is otherwise related to service. Risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA letter 211B (98-110) November 30, 1998. A Veteran may have been exposed to hepatitis C during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat Veteran. VBA Fast Letter 04-13 June 29, 2004. The Board notes, however, that service connection for hepatic C will not be granted based on the Veteran's own willful misconduct, to include infection through the abuse of alcohol or drugs. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.1(m). The Veteran's service treatment records are void of any diagnosis or treatment for hepatitis C or symptoms associated with hepatitis C. The only evidence of record documented in the Veteran's service treatment records was dental work. The November 1974 discharge examination noted old right ankle fracture, otherwise normal physical. The examination did not document a diagnosis of hepatitis C. However, the Veteran's DD-214 notes that his military occupation was as a medic. Therefore, such risk factors as being pricked with used needles while treating soldiers in-service, are incidents that appear to be consistent with his military occupational specialty of a medical specialist, or medical assistant. The Veteran is competent to report that he was exposed to such risk factors during service, as they are factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). At the January 2010 hearing, the Veteran reported that he was exposed to several of the above stated risk factors during service, including frequently being stuck with needles while drawing blood from service members, dental work, and immunizations with "air gun" injectors. Additionally, the Veteran submitted a December 2009 Internet article that purports to list risk factors for hepatitis C that are common among Vietnam-era veterans and cites to several medical sources. The Veteran was afforded a VA examination in August 2010 to determine the etiology of his hepatitis C. The examiner noted that the Veteran had a long history of polysubstance abuse/IVDA (intravenous drug abuse) for 38 to 40 years, including heroin, THC, cocaine, methamphetamines, and alcohol. During his tour of duty from 1973 to 1975, he had an Article 15 before discharge. The Veteran was stationed in Germany and had a drug problem at that time. His longest sobriety was 1984 to 1996. He had a history of hepatitis C with normal liver function. A complete review of the medical records determined that the onset of polysubstance abuse was as an addicted teenager, during tour of duty, and to include the past 38 to 40 years. The examiner concluded that the nature and etiology of the Veteran's hepatitis C was as least as likely as not that such condition was incurred or aggravated as a result of any incident or disease during active duty service. The Veteran reported multiple prolonged risk factors before, during, and after service. The examiner stated that with documentation that substance abuse for the past 38 to 40 years, it was certainly likely that more than one IV substance abuse exposure occurred. The likelihood of exposure to hepatitis C is significant particularly in a situation where the IVDA carrier has multiple contacts. The examiner stated that it was reasonable to accept this as the cause and reasonable dates for exposure particularly in the absence of documentation of the factor in the Veteran's case, including blood or blood products transfusion. However, there was the documentation of the factors in the Veteran's case, including intravenous illicit drugs, blood contamination via trauma - Veteran's history of needle sticks in service while working as a medic, and the jet air gun inoculations in service. Another medical opinion discussing the Veteran's hepatitis C was obtained in December 2011. The VA physician stated that he could not resolve the issue without resort to mere speculation. He noted that the Veteran had a right fibula fracture in May 1973. He noted that while Veteran did have surgery for right fibula fracture documented in the service treatment records in May 1973, and while this could have been his cause of hepatitis C, the Veteran also had a long standing history of IVDA as documented in CPRS. The VA physician also noted medical records of September 1983, where it was noted in the admission summary that the Veteran's heroin use started at age 15 and date of last use was 1976. Cocaine was started at age 15 and last use was 1983. The records also noted polysubstance use in September 1983 and in multiple places methamphetamines were also noted as having been used. It is well known that heroin use when the Veteran began using it was in an injectable form only. The shift to snorting for a more pure product was in more recent years. In an August 2010 psychiatric record, it was noted again that the Veteran had a history of IVDA. There was also a January 2010 transcript where the Veteran said he had been exposed to needle sticks and air gun shots - there is no documentation of this in service treatment records. While the Veteran may very well have acquired hepatitis in service due to surgery for fracture, he also had a long standing history of IVDA which began years before service; therefore, whether hepatitis C was acquired in service or before is an issue he could not resolve without resort to mere speculation. After a careful review of the evidence, the Board finds that the Veteran's in-service duties as a medical assistant, pertinent lay evidence, and the positive nexus opinion provided by the VA examiner, demonstrate that his currently diagnosed hepatitis C is related to his period of active military service. In the present case, the Veteran was afforded VA examination in August 2010 to determine the etiology of the his hepatitis C. The VA examiner concluded that the Veteran's hepatitis C was at least as likely as not acquired in service. While the examiner stated that the likelihood of exposure to hepatitis C was significant particularly in a situation where the IVDA carrier has multiple contacts, he also noted that the Veteran had other documented factors, to include a history of needle sticks in-service while working as a medic and the jet air gun inoculations in-service. The Board again notes that ultimately, the VA examiner concluded with a positive nexus opinion in reference to the Veteran's hepatitis C diagnosis. The Board finds this opinion credible as it was based on the Veteran's review of the claims file and the Veteran's medical history. Additionally, the Board notes that the December 2011 opinion was well-reasoned; however, based on the evidence of record, a VA physician was ultimately unable to determine if the Veteran acquired hepatitis C through in-service risk factors or by another mode of pre or post-service infection by IV drug use. Based on the above stated facts, the Board finds that that the Veteran has provided competent and credible evidence identifying hepatitis C risk factors of air gun inoculations, blood exposure as part of his MOS as a medical assistant, as well as IV drug abuse which occurred both during a qualifying period of active service and outside a qualifying period of active service. For the foregoing reasons, the Board concludes that the balance of positive and negative evidence is at the very least in relative equipoise with respect to the Veteran's hepatitis C claim. He is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Indeed, where the evidence supports a claim or is in relative equipoise, the appellant prevails. 38 U.S.C.A. 5107 (b); Gilbert, 1 Vet. App. at 53. Accordingly, the Board finds that service connection for hepatitis C is warranted. III. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § Part 4 (2012). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant's application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that timeframe. 38 U.S.C.A. § 5110(b)(2); Hart, 21 Vet. App. 505, 509 (2007). Here, the relevant evidentiary window begins one year before the Veteran filed his claim for increased rating (March 2005), and continues to the present time. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes. The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's residuals of a right fibular fracture with right ankle strain is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5271. DC 5271 provides ratings based on limitation of motion of the ankle. A 10 percent rating is warranted for moderate limitation of motion. A 20 percent rating is warranted for marked limitation of motion. 38 C.F.R. § 4.71a , DC 5271. Normal range of motion for the ankle is from 0 to 20 degrees dorsiflexion, and from 0 to 45 degrees plantar flexion. 38 C.F.R. § 4.71a , Plate II. The words "moderate" and "marked" are not defined in the Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at an equitable and just decision. 38 C.F.R. § 4.6. Of assistance in this regard is the fact "moderate" is generally defined as "tending toward the mean or average amount or dimension." See Merriam-Webster 's at 798. "Marked" is generally defined as "having a distinctive or emphasized character." Id. at 760. Ankle disabilities may also be rated under Diagnostic Codes 5270, 5272, 5273, and 5274 (2012). Under Diagnostic Code 5270, ankylosis of the ankle in plantar flexion less than 30 degrees, warrants a 20 percent rating; in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, warrants a 30 percent rating; and in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity, warrants a 40 percent rating. Under Diagnostic Code 5272, ankylosis of the subastragalar or tarsal joint in good weight-bearing position warrants a 10 percent rating, and in poor weight-bearing position, warrants a 20 percent rating. Under Diagnostic Code 5273, malunion of the os calcis or astragalus with moderate deformity warrants a 10 percent rating, and with marked deformity, warrants a 20 percent rating. Finally, Diagnostic Code 5274 provides a 20 percent for astragalectomy. Additionally, Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The Board has reviewed all of the evidence in the Veteran's claims file, including VA treatment records, VA examination reports, and statements submitted in support of his claim. In this regard, the Board notes that, although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, all of the extensive evidence of record. Indeed, it has been held that while the Board must review the entire record, it need not discuss each piece of evidence in rendering a decision. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis will focus specifically on the evidence that is needed to substantiate the Veteran's claim for an increased disability rating for his residuals of a right fibular fracture with right ankle strain. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran was afforded a VA examination in August 2010 to assess his right ankle disability. The Veteran reported that he was unable to maintain a job due to leg and ankle pain. Additionally, the examiner noted that the Veteran's right ankle disability had significant effect on his usual occupation, such as decreased strength mobility of the lower extremity and pain. He reported difficulty with prolonged walking and standing. He was unable to stand for more than a few minutes and only able to walk for a 1/4 mile. He reported using no assistive devices. Upon examination, the Veteran had a normal gait. His right ankle showed tenderness and guarding of movement, but no instability or tendon abnormality. The Veteran showed objective evidence of pain with active motion on the right side. The Veteran's right ankle dorsiflexion was from 0 to 15 degrees, and plantar flexion was from 0 to 40 degrees. There was also no additional limitation of motion of the right ankle or objective evidence of pain following three repetitions of range of motion testing. The examiner also noted that the Veteran had reported multiple complaints of knee and ankle myalgia, followed by the VAMC. X-rays of the right tibia and fibula demonstrated no acute fracture. Additionally, there was calcification along the distal aspect of the tibiofubular syndesmosis. This was probably posttraumatic given the history of fibular fracture. Additionally, x-rays of the right ankle showed no significant degenerative change or acute fracture. VA treatment records note a diagnosis of myofasical pain syndrome, however, it appears to be in relation to the Veteran's back disability. Additionally, VA treatment records are void of any right ankle evaluation, to include range of motion testing. In light of the evidence, the Veteran is not entitled to an increased disability rating in excess of 10 percent for residuals of a right fibula fracture with right ankle strain under DC 5271 for ankle limitation of motion. The criteria for a higher 20 percent evaluation under Diagnostic Code 5271 have not been met. The Veteran's right ankle manifests limitation of motion most appropriately characterized as moderate rather than marked pursuant to Diagnostic Code 5271. A considerable range of motion has been possible during the entire period on appeal even taking into account DeLuca, Mitchell, and associated regulations. The August 2010 VA examination showed the Veteran's right ankle dorsiflexion was from 0 to 15 degrees, and plantar flexion was from 0 to 40 degrees. As noted above, normal range of motion for the ankle is from 0 to 20 degrees dorsiflexion, and from 0 to 45 degrees plantar flexion. 38 C.F.R. § 4.71a , Plate II. While the Veteran does experience ankle pain, the pain does not raise to the level of a marked limitation of motion of the ankle under Diagnostic Code 5271. See Mitchell v. Shineski, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40 ). Additionally, there was also no additional limitation of motion of the right ankle or objective evidence of pain following three repetitions of range of motion testing. The Board has also considered the additional diagnostic codes pertaining to ankle disabilities. Diagnostic Codes 5270 and 5272 concern ankylosis, which was not noted upon examination. See Dorland's at 94 (defining ankylosis as immobility and consolidation of a joint). As discussed in the August 2010 VA examination report, the Veteran had considerable range of motion in both directions. DC 5273 pertains to malunion of os calcis or astragalus, which the evidence also shows the Veteran does not have. His x-rays of the right ankle showed no significant degenerative change or acute fracture. The final DC is for astragalectomy, a surgical procedure for which there is no indication the Veteran has undergone. Therefore, the Veteran is not entitled to an increased rating under DC 5270, 5272, 5273, or 5274. The Board has also considered DC 5262 for impairment of the tibia and fibula, as the Veteran's service-connected disability also encompasses residuals of a right fibula fracture. This diagnostic code pertains to union and malunion of the tibia and fibula. However, the August 2010 x-rays of the right tibia and fibula showed no union or malunion. Therefore, the Veteran is not entitled to an increased rating under DC 5262. For the reasons and bases provided above, the preponderance of the evidence in this case is against the Veteran's claim for an increased disability rating in excess of 10 percent for residuals of a right fibula fracture with right ankle strain. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Accordingly, the Veteran's claim for an increased rating for residuals of a right fibular fracture with right ankle strain is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). IV. Extraschedular Consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). 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). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's symptoms of his service-connected residuals of a right fibular fracture with right ankle strain include pain and limitation of motion. The Veteran's residuals of a right fibular fracture with right ankle strain have not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describes his disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5271. For this reason, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER Service connection for hepatitis C is granted. Entitlement to an increased disability rating in excess of 10 percent for residuals of a right fibular fracture with right ankle strain, is denied. REMAND A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claims of service connection for DM and entitlement to a TDIU. A. Diabetes Mellitus The Veteran asserts that he is entitled to service connection for diabetes mellitus because he noticed symptoms of tiredness during service. The Veteran also asserts that service connection is warranted because he treated service members who had been exposed to Agent Orange in Vietnam as part of his in-service duties as a medical assistant in Germany. A diagnosis of DM was first noted in an April 1993 private treatment record. The Veteran was noted to have markedly elevated blood sugar on his preoperative lab work. He reported that he had been tensely thirsty for the past several weeks, feeling generally quite ill, with blurry vision and severe nausea. It was noted that he had no known prior history of DM and no known family history. He worked for the Department of Education and apparently fell at his job a few months ago, and was scheduled to have knee surgery. The Veteran was diagnosed with diabetic ketoacidosis, with a new onset of DM. The Veteran had not ingested any medications or other toxins which would be expected to lead to diabetes. He did not have a significant enough alcohol intake to suggest chronic pancreatitis as an etiology for his DM. He was somewhat old to be presenting with type I DM, although his presentation with diabetic ketoacidosis indicated that this was clearly type I insulin dependent diabetes. The Veteran was admitted to the hospital at that time. On April 1993 discharge paperwork, the Veteran's physician noted that the Veteran noticed symptoms over the past three months, ever since his previous surgery. The final diagnosis upon discharge was diabetic ketoacidosis, new onset of DM, probably secondary to stress from previous surgery and knee injury, and status post knee surgery in January of 1993 after a fall. The record also contains a May 1993 letter the Veteran's private treating physician. He noted that the Veteran had been under his care since his hospitalization in April 1993. At that time, the Veteran was found to have DM. The Veteran was in his usual state of health until he was injured and underwent a surgical procedure done in January 1993 for a work-related injury. Since that time, he had been feeling ill with what sounded like symptoms suggestive of DM. It was the physician's opinion that the stress from his surgery as well as his injury may have been severe enough to predispose him to manifesting his symptoms of underlying DM. It was known that stress could induce diabetes and he felt that the Veteran may have had enough stress to cause him to become diabetic. Fortunately for the Veteran, his diabetes had been under good control and if his orthopedic related injuries resolved, there was no contraindication to his resuming work in the future. VA treatment records show a diagnosis and ongoing treatment for diabetes mellitus, type II. At the January 2010 hearing, the Veteran reported that the first time he realized his energy level was different and he was sleepy all the time was when he was at Fort Sam Houston in 1973. He reported that while playing football he broke his leg, and that was when he had his ankle injury. He noted that diabetes had been proven to be stress related. Through his job, going through school for medical training at that time, and breaking his leg, he believed this was the onset of diabetes in-service. This is when he first encountered tiredness and dozing off. He reported that his wife told him that with bed sweats and being irritable, something was different with him. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). VA has neither afforded the Veteran an examination nor solicited a medical opinion as to the onset and/or etiology of his DM. Therefore, it remains unclear to the Board whether the Veteran has a current diagnosis of DM type I or II, and whether any diagnosis of DM is related to any aspect of his active military service. A medical opinion regarding the etiology of the Veteran's DM is therefore necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the Veteran was trained as a medical assistant in-service, the Board notes that he has not stated that he continued employment in this field after service or that he has medical expertise on the topic of diabetes mellitus. The Board, therefore, finds that an opinion from a physician would be helpful in adjudicating this claim. B. TDIU As stated above, the Board finds that it has jurisdiction over a TDIU claim, which the Veteran effectively raised by asserting that he is unable to work due to his service-connected ankle disability at the August 2010 VA examination. Additionally, VA treatment records document that the Veteran has been unemployed since June 1993. Entitlement to a TDIU requires the presence of an impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by non-service- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Accordingly, a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, is the necessary percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). Nevertheless, a TDIU may still be available if the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). As such, pursuant to 38 C.F.R. § 4.16(b), consideration must be given as to whether the Veteran is entitled to a TDIU on an extraschedular basis. As previously stated, the Veteran reported that he was unable to maintain a job due to leg and ankle pain. Additionally, the examiner noted that the Veteran's right ankle disability had significant effect on his usual occupation, such as decreased strength mobility of the lower extremity and pain. However, the examiner did not provide an opinion as to whether the Veteran's ankle disability rendered him unemployable. Because the Veteran has not yet undergone a VA examination with respect to his TDIU claim, the Board finds that, on remand, he should be afforded a VA examination and opinion to ascertain the impact of his service-connected disabilities on his employment. Furthermore, if the RO determines, on remand, that service connection is warranted for any additional disability, the impact of that disability on the Veteran's unemployability should also be addressed. Additionally, the Board notes that a remand is necessary to obtain any outstanding VA treatment records. The record reflects that the Veteran was receiving periodic treatment at the VA through November 2010. It is unclear to the Board if the Veteran continued to seek treatment for his claimed conditions after that time. Because it appears that there may be outstanding VA medical records dated after November 2010 that may contain information pertinent to his claims, those records are relevant and should be obtained. See 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. Accordingly, the case is REMANDED for the following action: 1) The RO should provide the Veteran with appropriate notice of the evidence and information needed to establish a claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disability. Additionally, the RO should undertake any development it deems necessary. 2) The AMC should obtain any of the Veteran's outstanding VA treatment records dated from November 2010 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. 3) After the foregoing, schedule the Veteran for a VA examination to assess the nature and etiology of his diabetes mellitus. The claims file and a copy of this Remand should be made available to and reviewed by the examiner. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary tests, should be conducted. The examiner should determine if the Veteran currently suffers from diabetes mellitus, type I or II. The examiner should provide an opinion as to whether it is at least as likely as not (at least a 50-50 probability) that the Veteran's diabetes mellitus, had its onset in service or is related to any in-service disease, event, or injury, to include in-service stress from training and/or a right ankle injury. In offering these opinions, the examiner should specifically acknowledge and comment on the evidence of record, such as service treatment records, VA outpatient treatment records, the April 1993 private treatment records diagnosing him with DM, the May 1993 private physician letter, the January 2010 hearing transcript, lay statements, and any other relevant information. Furthermore, the examiner should discuss the Veteran's lay statements regarding the onset and duration of symptoms, including his reported in-service symptoms, when discussing the offered opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4) Furthermore, the Veteran should be scheduled for a VA examination to evaluate the impact of his service-connected disabilities on his employability. The claims folder and a copy of this remand must be reviewed by the examiner in conjunction with the examination and the review should be noted in the examination report. The examiner should provide an opinion as to whether the Veteran's service-connected residuals of a right fibular fracture with right ankle strain render him unable to secure or follow a substantially gainful occupation. Additionally, the examiner should provide an opinion as to whether the Veteran's service-connected disabilities (right ankle disability and hepatitis C) in the aggregate, render him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claims, to include whether a TDIU is warranted. If a claim remains denied, the AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012). Department of Veterans Affairs