Citation Nr: 1419489 Decision Date: 05/01/14 Archive Date: 05/16/14 DOCKET NO. 11-12 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating for osteochondroma of the distal left fibula with deformity, rated as 10 percent disabling prior to April 3, 2009, as 20 percent disabling prior to February 13, 2013, and as 30 percent disabling thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to December 1983 This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office RO) in Atlanta, Georgia, which granted service connection for osteochondroma of the distal left fibula with deformity, evaluated as 10 percent disabling. The Veteran appealed the issue of entitlement to an increased initial evaluation. The Veteran's evaluation was subsequently increased on two occasions. The case is currently under the jurisdiction of the Nashville, Tennessee RO. In November 2012, the Board remanded the increased initial evaluation claim for additional development. In July 2012, the Veteran was afforded a videoconference hearing before the undersigned Acting Veterans Law Judge who is rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to 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. 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. Prior to April 3, 2009, the Veteran's osteochondroma of the distal left fibula with deformity is shown to have been productive of subjective complaints of pain, and no more than a moderate limitation of motion, but not a marked limitation of motion. 2. For the period from April 3, 2009, to February 12, 2013, the Veteran's osteochondroma of the distal left fibula with deformity is shown to have been productive of subjective complaints of pain, and no more than a moderate limitation of motion, but not a marked limitation of motion. 2. As of February 13, 2013, the Veteran's osteochondroma of the distal left fibula with deformity is shown to have been productive of complaints of pain and some ankylosis, but not ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. CONCLUSIONS OF LAW 1. Prior to April 3, 2009, the criteria for a rating in excess of 10 percent for the Veteran's service-connected osteochondroma of the distal left fibula with deformity are not shown to have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5270, 5271 (2013). 2. For the period from April 3, 2009, to February 12, 2013, the criteria for a rating in excess of 20 percent for the Veteran's service-connected osteochondroma of the distal left fibula with deformity are not shown to have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5270, 5271 (2013). 3. As of February 13, 2013, the criteria for a rating in excess of 30 percent for the Veteran's service-connected osteochondroma of the distal left fibula with deformity are not shown to have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5270 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Initial Evaluation The Veteran asserts that he is entitled to an increased initial evaluation for his service-connected left ankle disability. In September 2008, the RO granted service connection for osteochondroma of the distal left fibula with deformity, evaluated as 10 percent disabling, with an effective date for service connection of August 13, 2007. The Veteran appealed the issue of entitlement to an initial evaluation in excess of 10 percent, and in August 2009, the RO granted the claim, to the extent that it assigned a 20 percent evaluation, with an effective date of April 3, 2009. In May 2013, the RO again granted the claim, to the extent that it assigned a 30 percent rating, with an effective date of February 13, 2013. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. 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). The analysis in the following decision, therefore, is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses are prohibited. 38 C.F.R. § 4.14. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). A layperson is only competent to report observable symptoms, but not clinical findings which are applied to VA's Schedule for Rating Disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. Under the provisions of Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of motion. A 20 percent rating is assigned for marked limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. Words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Other potentially applicable diagnostic codes include Diagnostic Code (DC) 5270, which provides ratings for ankylosis of the ankle. Under DC 5270, ankylosis of the ankle in planter flexion less than 30 degrees is to be rated 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Normal range of motion for the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2013). With regard to the history of the disability in issue, the Veteran's service treatment reports show that in 1978, he was noted to have a fracture of the left distal fibula with malunion and poor healing. In 1979, a large mass was noted over the distal 1/3rd of the interossuous membrane on the tibia-fibula. The assessment was osteochondroma. An October 1983 report notes a history of a fractured left tibia-fibula, with no sequalae. As for the post-service medical evidence, in 2005 the Veteran received treatment for left ankle symptoms. The assessment was tendonitis. See 38 C.F.R. § 4.1 (2013). A. Prior to April 3, 2009 The relevant evidence is summarized as follows: VA progress notes show treatment for bilateral ankle pain symptoms in May 2008. The Veteran reported that he worked as a chef. He had a normal gait. A filament test was considered normal. He was noted to be obese. An X-ray noted old post- traumatic changes involving the distal left fibula with ossification of the interossous ligament. The assessment was bilateral ankle pain. He was given an ankle brace, and orthotics. A July 2008 QTC fee-basis examination report shows that the Veteran complained of weakness, stiffness, giving way, lack of endurance, and fatigability. He denied locking, or dislocation. He reported constant pain at a level of 7 out of ten (with ten being the worst) which diminished his ability to function. He reported difficulty with any prolonged standing and walking, and that he was unable to function normally due to ankle pain. He stated that walking was difficult. On examination, gait was considered abnormal and asymmetrical due to left ankle loss of motion. He did not require any assistive devices for ambulation. The left ankle had dorsiflexion to 16 degrees, and plantar flexion to 45 degrees. Joint function was additionally limited by pain, fatigue, and lack of endurance following repetitive use; there was no weakness or incoordination. The additional limitation of motion following repetitive use was 5 degrees. There was no indication of a malunion to the os calcis, or of the astralgus. An X-ray was noted to show osteochondroma with deformity at the left distal fibula. The diagnosis was osteochondroma with deformity left distal fibula. The subjective factors were pain, and difficulty with prolonged standing or walking. The objective factors were positive X-rays and a positive examination. The effect on his occupation, and daily activities, was difficulty with prolonged standing and walking, A report from T.L.D., DPM, dated in September 2008, states that the Veteran has been receiving intermittent treatment for left ankle pain since 2005. The report states that the Veteran has a permanent disability "to some degree" and that his symptoms had been progressively worsening. On examination, strength was 4/5, with a mild decrease in dorsiflexion. Neurovascular status was intact. X-rays were noted to reveal an old, healed fracture with possible fusion of the affected area with callus formation noted. There was no acute injury. The assessment was arthritic changes with premature fusion of ankle and lower extremity with foot pain, left foot and ankle. It was recommended that the Veteran receive an AFO to prevent progression of deformity, or that he undergo an arthroplasty, although surgery should be deferred until he was age 55 due to his employment and age. VA progress notes show that in October 2008, the Veteran receive additional treatment for left ankle pain. He was noted to have a decreased range of motion (specific degrees of motion were not provided). The diagnoses included chronic left leg pain secondary to old fracture at ankle. In November 2008, he was issued a cane, and he was noted to have a decreased range of motion (specific degrees of motion were not provided). A December 2008 report from G.G., M.D., shows that the Veteran was noted to deny having any joint pain or swelling, or any muscle cramps, weakness, or stiffness, and that he denied any weakness or paresthesias. A private functional capacity evaluation report, dated in March 2009, shows that the Veteran had sustained an on-the-job injury in November 2008. The Veteran complained of constant pain of 9.5 to 10 on a scale of 1 to 10 (with 10 being the worst) when working, and pain of 6 to 7 when not working. He performed at the medium physical demand level for material handling and position tolerances (according to Department of Labor Standards), and at the heavy physical demand level for floor-to-knuckle lifting. He was limited by lower left leg pain, and his gait was antalgic. Estimated activity tolerance was unlimited sitting, 5 minutes of standing, 20 minutes of walking, unlimited driving, and lifting to 100 pounds. Left ankle dorsiflexion was to 10 degrees, and plantar flexion was to 52 degrees. Strength was 4-/5 or greater at the left ankle. The Board finds that the criteria for an initial evaluation in excess of 10 percent have not been met. As an initial matter, for all applicable diagnostic codes, the Board points out that there are no relevant treatment reports dated within the first nine months of this time period (i.e., August 2007 to May 2008). With regard to DC 5271, in July 2008, the Veteran's left ankle is shown to have dorsiflexion to 16 degrees, and plantar flexion to 45 degrees. In March 2009, the Veteran's left ankle dorsiflexion was to 10 degrees, and plantar flexion was to 52 degrees. In the Board's judgment, this evidence is not representative of a marked limitation of motion as required for a rating in excess of 10 percent under DC 5271. See also 38 C.F.R. § 4.71, Plate II. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. In conjunction with application of DC 5271, an increased evaluation may be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain under 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995). In this case, the aforementioned evidence shows that the Veteran has repeatedly complained of severe pain. A May 2008 VA progress note reveals findings of a normal gait, normal muscle strength and tone, and use of an ankle brace. The assessment was chronic ankle pain. An X-ray noted a remote hairline fracture in 1978. The impression was post-traumatic changes involving the distal left fibula with ossification of interosseus ligament. The September 2008 report from Dr. T.L.D. shows inter alia that the Veteran had 4/5 strength. A December 2008 private report notes that the Veteran denied joint pain, weakness, or swelling. The March 2009 functional capacity evaluation shows that the Veteran performed at the medium physical demand level for material handling and position tolerances, and at the heavy physical demand level for floor-to-knuckle lifting. Estimated activity tolerance was unlimited sitting, 5 minutes of standing, 20 minutes of walking, unlimited driving, and lifting to 100 pounds. Therefore, even taking into account the notations of left ankle pain, the Board finds that, when the ranges of motion in the left ankle are considered together with the evidence of functional loss due to left ankle pathology, the evidence is insufficient to show that the loss of motion in the left ankle more nearly approximates the criteria for a rating in excess of 10 percent, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. Thus, the Board finds that limitation of motion is not shown that more nearly approximated or rose to the level of marked as envisioned by the rating schedule. In this regard, pain alone does not constitute a functional loss under VA regulations. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As for the possibility of a higher rating under another diagnostic code, Schafrath v. Derwinski, 1 Vet. App. 589 (1991), under 38 C.F.R. § 4.71a, DC's 5270 and 5272 (2013), ankylosis of a subastragalar or tarsal joint, or of the ankle itself, warrants evaluations ranging from 10 to 40 percent, depending on the position of the joint and whether there are any deformities of abduction, adduction, inversion, or eversion. Under DC 5273, a 20 percent rating is warranted for "Os calcis or astragalus, malunion of: marked deformity." The Board's discussion of the Veteran's claim under DC 5271 is incorporated herein. Briefly stated, the medical evidence does not show that the Veteran has a marked limitation of left ankle motion, much less that the left ankle is ankylosed. Thus, there is no basis for the assignment of a higher evaluation under Diagnostic Codes 5270 or 5272. With regard to DC 5273, the evidence does not show that he has a malunion of the left os calcis or astragalus with marked deformity. Accordingly, the criteria for a rating in excess of 10 percent under DCs 5270, 5272, and 5273 are not shown to have been met, and the claim for this period must be denied. B. From April 3, 2009, to February 12, 2013 The relevant evidence is summarized as follows: A QTC fee-basis examination report, dated in May 2009, shows that the Veteran complained of constant left ankle pain of 8 on a scale of 1 to 10 (with 10 being the worst). It was elicited by physical activity and relieved by Tramodol. At the time of the pain, he could function with medication. He denied a history of surgery or hospitalization for his ankle. Treatment was with pain medication and braces. He complained that he could no longer work as a chef due to his inability to stand for long periods of time. On examination, he had a limp, favoring his left leg. He required a cane to ambulate. He did not require a brace, crutches, corrective shoes or a walker. There was bony hypertrophy and deformity of the ankle region. The left ankle dorsiflexion to 7 degrees, and plantar flexion to 16 degrees. Joint function was additionally limited by pain, fatigue, weakness, and a lack of endurance, with pain having the major functional impact. There was no indication of a malunion to the os calcis, or of the astralgus. An associated X-ray report contains an impression of no lower left leg abnormality. The diagnosis was osteochondroma of distal left fibula with left ankle deformity. The effect of this disability on the Veteran's usual occupation was limited prolonged standing and ambulation. The effect on his daily activities was limited prolonged standing and ambulation with decreased exercise tolerance. A May 2009 report from D.M., M.D. essentially notes the results of the Veteran's March 2009 functional capacity evaluation report, and states that the Veteran can no longer perform his job as a cook due to his inability to stand for more than five minutes at a time. VA progress notes show that, overall, the Veteran received a number of treatments for complaints of left ankle pain. A May 2009 VA progress note shows treatment for complaints of left ankle pain. The Veteran reported that he had gone on "short-term disability" due to his ankle symptoms. On examination, he had an antalgic gait, and walked with a cane. Left lower extremity dorsiflexion was to 10 degrees, and plantar flexion was to 30 degrees. An X-ray was noted to show no evidence of acute fracture or dislocation, grossly unchanged prominent probably benign cortical thickening within the distal fibular shaft with associated probable ossification of the adjacent interosseous membrane which likely is related to the patient's known history of old trauma. There is a notation that surgery was unlikely to provide him with relief. An April 2010 VA progress note states that the Veteran had normal muscle strength and muscle tone, with equal reflexes bilaterally, and a normal gait. An April 2011 VA X-ray report for the left ankle contains an impression noting an old healed fracture deformity involving the distal left fibula with ossification at the interosseous membrane, consistent with old trauma, and no other significant abnormality. A June 24, 2011, report from a VA physician, L.W.H., M.D., states that the Veteran has left hip and leg pain, that he should not work more than 5 days a week, or more than 40 hours per week, and that he needed to be off work until July 8, 2011 to rest his injuries. A VA progress note from Dr. L.W.H., dated that same day, notes that the Veteran used a cane due to left hip pain, that he has a slight limp due to his left ankle, and that he works at a hospital cafeteria, and works long shifts on his feet more than five days in a row. The assessment was left hip pain. An August 2011 VA progress note shows complaints of chronic left hip and leg pain, and an antalgic gait. The Veteran was noted to be obese, and the report indicates that he was encouraged to lose weight. A VA disability benefits questionnaire (DBQ), dated in November 2011, shows that the examiner indicated that the Veteran's claims file had been reviewed. The diagnosis was osteochondroma, distal left fibula. The Veteran asserted that he was not able to work due to his service-connected conditions of the left ankle, knee, and hip. He stated that he normally worked as a chef, and that he is not able to work in this field as he cannot stand more than 10 minutes, and he cannot walk more than 5-10 minutes due to the left ankle, knee, and hip conditions. On examination, left ankle plantar flexion was to greater than 45 degrees, with painful motion at 45 degrees or greater. Left ankle dorsiflexion was to 10 degrees, with painful motion at 10 degrees. The Veteran was able to perform repetitive-use testing with 3 repetitions, and his ranges of motion were unchanged following repetitive motion. Overall, there was functional loss due to loss of motion, and pain on movement. Strength was 5/5 on dorsiflexion and plantar flexion. There was no laxity, and no ankylosis. The examiner stated that the Veteran's left ankle condition precludes him from physically demanding occupational activities requiring high impact activities such as running, jumping, and climbing. The condition does not preclude sedentary occupational activities which can be performed while sitting in a setting of limited requirements for extended (more than 5-10 minutes) walking or standing. The Board finds that the claim for this period must be denied. Under 38 C.F.R. § 4.71a , DC 5270, a 30 percent rating is warranted for ankle ankylosis in plantar flexion between 30 degrees and 40 degrees; or in dorsiflexion between 0 degrees and 10 degrees. In this case, there is no evidence to show that the Veteran's left ankle is productive of ankylosis during the time period in issue. Accordingly, the Board finds that the criteria for an evaluation in excess of 20 percent under DC 5270 have not been met, and that the claim must be denied. As the Veteran has been granted the maximum possible rating for limited motion of the ankle under DC 5271, it is not necessary to consider whether there is functional loss due to pain and weakness on motion which could warrant a higher rating under that diagnostic code. See Johnson v. Brown, 9 Vet. App. 7 (1996). C. As of February 13, 2013 A VA DBQ, dated February 13, 2013, shows that the examiner indicated that the Veteran's claims file had been reviewed. The Veteran complained of left ankle pain that radiated to his left leg, left knee, and left hip. He rated his pain as an "8" on a scale of 1 to 10 (with 10 being the worst). He reported that he had been out of the work force since 2008, and retired as of 2009, due to disabilities that included a left ankle disability, and left knee, bilateral hip, and back disorders. The examiner stated that this history was read and re-read to the Veteran multiple times to verify the accuracy. The Veteran complained of daily flare-ups lasting three minutes to 5 hours that were related to walking greater than 5 to 30 feet, prolonged standing more than 5 to 30 minutes, lifting 5 pounds repetitively, or 15 pounds one time, sitting or driving more than 3 to 5 minutes. He reported that he could not squat, kneel, push, pull, use stairs, ladders, or foot controls. Left ankle plantar flexion was to 15 degrees, with pain at 0 degrees. Left ankle dorsiflexion was to 0 degrees, with pain. These ranges of motion were unchanged upon repetitive motion, and there was no additional limitation of motion following repetitive motion. There was functional loss in the left ankle manifested by less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, instability of station, disturbance in locomotion, interference with sitting, standing and weight-bearing, and an inability to sleep secondary to ankle pain. Left ankle strength was 2/5. There was ankylosis in plantar flexion at less than 30 degrees, and in dorsiflexion between 0 and 10 degrees. It was noted that there was regular use of a cane, but no history of surgery. The ability to work was impacted by left ankle and leg flare-ups, during which time the Veteran asserted that he lost 90 to 95 percent of his "normal function." The diagnoses were osteochondroma, left fibula, degenerative joint disease, and ankylosis. VA progress notes, dated in 2013, primarily show treatment for disorders not in issue. A December 2013 report notes that a neurological examination was intact to monofilament testing. An April 2013 decision of the Social Security Administration (SSA), shows that the SSA determined that the Veteran was not disabled. The SSA's supporting documents included a functional assessment which showed that it was determined that the Veteran would have difficulty bending, stooping, kneeling, squatting, crouching, crawling and climbing, but that he was capable of working in a seated position, operating hand and foot controls, performing clerical work, security work, etc., for eight hours a day. It was also determined that he could stand or walk (with normal breaks) for six hours out of a normal eight-hour workday, and that he could occasionally use ramps, stairs, and ladders, and that he could occasionally stoop, kneel, crouch, and crawl. Under DC 5270, a 30 percent rating is warranted for ankylosis of the ankle in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. A 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. Id. The Board finds that the criteria for a rating in excess of 30 percent have not been met as of February 13, 2013. The February 2013 DBQ shows that there was ankylosis in plantar flexion at less than 30 degrees, and in dorsiflexion between 0 and 10 degrees. Accordingly, the Board finds that the criteria for an evaluation in excess of 30 percent under DC 5270 have not been met, and that the claim must be denied. D. Conclusion The Board has considered the Veteran's statements that he should be entitled to a higher disability rating for his left ankle. He has reported decreased function due to such symptoms as pain, weakness, and swelling. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d at 1331. Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony simply because a claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran is competent to report his current left ankle symptoms as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran's assessment of the severity of his disability. The examinations also took into account the Veteran's subjective statements with regard to the severity of his ankle disability. Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2013); Thun, 22 Vet. App. at 116. The schedular evaluations in this case are not inadequate. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected disability are congruent with the disability picture represented by the disability rating assigned herein. The criteria for the ratings currently assigned more than reasonably describe the Veteran's disability level and symptomatology. The Veteran is shown to have left ankle pain, with a limitation of motion, and ankylosis is shown as of February 2013. The rating schedule contemplates this. 38 C.F.R. § 4.71a, DCs 5270, 5271. The schedular criteria considered contemplate a variety of manifestations of impairment. See also DeLuca. Given the ways in which the rating schedule contemplates impairment for the Veteran's disability, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. In short, there is nothing exceptional or unusual about the Veteran's disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, the Veteran does not contend, and the evidence of record does not suggest, that his disability has resulted in any surgery or hospitalizations. To the extent that the Veteran has reported that he stopped work no later than 2009 due to symptoms that included his left ankle, see e.g., February 2013 VA DBQ, he has reported to others that he worked as recently as July 2011. See e.g., VA progress note, dated in August 2011; report from Social Security Administration; Veteran's claim for TDIU (VA Form 21-8940), received in July 2013. Furthermore, although not dispositive of the issue, the Board notes that the SSA has determined that he is not disabled. The Board finds, therefore, that the Veteran's service-connected disability in issue does not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. In deciding the Veteran's claim, the Board has considered the determinations in Fenderson, and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's evaluations should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability on appeal such that an increased rating is warranted. In reaching this decision, the Board considered the benefit- of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claim, such rule is not for application. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in November 2007 and February 2008. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Following the grant of service connection, a separate VCAA notice was provided in April 2009 and July 2013, however, and in any event, as this claim involves an initial increased evaluation, the VCAA is no longer applicable. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records, and SSA records. No outstanding records have been identified that have not otherwise been obtained. The Veteran has been afforded examinations in order to assess the current severity of the his service-connected left ankle disorder. In December 2013, the Board remanded this claim. The Board directed that the Veteran's SSA records be obtained, and that any medical reports dated after November 2013 be obtained. Subsequently, VA reports, dated between November and December of 2013 were obtained, and SSA records were obtained. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In July 2012, the Veteran was provided an opportunity to set forth his contentions during the Board hearing before the undersigned Acting Veterans Law Judge (AVLJ). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the July 2012 hearing, the AVLJ identified the issue on appeal. Also, information was solicited regarding the current severity of his left ankle disability. The testimony does not indicate that there are any outstanding medical records available that would support his claim. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Prior to April 3, 2009, a rating in excess of 10 percent for the Veteran's service-connected osteochondroma of the distal left fibula with deformity is denied. For the period from April 3, 2009 to February 12, 2013, a rating in excess of 20 percent for the Veteran's service-connected osteochondroma of the distal left fibula with deformity is denied. As of February 13, 2013, a rating in excess of 30 percent for the Veteran's service-connected osteochondroma of the distal left fibula with deformity is denied. REMAND In December 2011, the RO denied a claim for TDIU. However, subsequent to that time, he asserted that he could not work due to his left ankle disability. See e.g., February 2013 VA DBQ; see also Veteran's claim for TDIU (VA Form 21-8940), received in July 2013. Therefore, for the period after December 2011, the issue of entitlement to a TDIU is considered to be "part and parcel" of his claim for an increased initial evaluation for his service-connected left ankle disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In December 2013, the Board referred the TDIU issue to the RO for adjudication. In a supplemental statement of the case, dated in January 2014, the Appeals Management Center indicated that the claim for TDIU was denied, however, there was no analysis of this issue, and it was not listed as an issue. In summary, it does not appear that this issue had been adjudicated, nor has the Veteran been afforded VCAA notice as to this issue. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA notice letter with respect to the issue of entitlement to TDIU. 2. Develop and adjudicate the issue of entitlement to TDIU. If the claim is denied, the RO should issue an appropriate supplemental statement of the case, afford the Veteran and his representative the opportunity to respond, and the case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs