Citation Nr: 1759930 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 06-07 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a separate disability rating for osteomyelitis, distinct from presently evaluated residuals of an accidental wound to the left thigh. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Robert Chisholm, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and JW ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1958 to June 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Montgomery, Alabama. The Veteran testified before the undersigned at a February 2010 travel board hearing. A transcript of the hearing is of record and was reviewed. The issues on appeal were remanded by the Board for further development in August 2010 and February 2013. In October 2016, the Board granted entitlement to a 30 percent rating, but no higher, for the Veteran's thigh wound residuals under the rating criteria for Diagnostic Code (DC) 5314, effective May 17, 2012, and denied the Veteran's claim of entitlement to a TDIU. The Veteran appealed. By way of a May 2017 Joint Motion for Partial Remand (JMPR) and subsequent May 2017 Order from the United States Court of Appeals for Veterans Claims, the October 2016 Board decision was vacated insofar as the Board denied entitlement to a separate rating for osteomyelitis for the Veteran's service-connected thigh wound residuals and denied entitlement to TDIU. The issues are thus characterized accordingly. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. With resolution of doubt in the Veteran's favor, osteomyelitis has manifested as an active infection in increments no greater than five years throughout the appeal period. 2. With resolution of doubt in the Veteran's favor, the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a separate disability rating of 20 percent for osteomyelitis in the left femur have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.43, 4.71a, 4.73, DCs 5000, 5314 (2017). 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As a TDIU is granted in the instant decision, any error in VA's duties to notify and assist is harmless. For the Veteran's claim of entitlement to a separate disability rating for osteomyelitis, the Board finds that the duties to notify and assist have been satisfied. Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided and the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. Thus, adjudication of his claims at this time is warranted. As for the duty to assist, post-service medical records have been obtained, to the extent available. The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been identified or remains outstanding and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. Most recently, a May 2015 VA examination report discussed all applicable medical principles and medical treatment records relating to the issues discussed herein, and the analyses are considered adequate upon which to decide these claims. There has been substantial compliance with all pertinent VA law and regulations, including as to the provided hearing, and to adjudicate the claims would not cause any prejudice to the appellant. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in February 2010. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior May 2017 remand directives enumerated in the May 2017 JMPR. II. Factual History The Veteran claims he is entitled to a separate disability rating for his service-connected residuals of an accidental wound to the left thigh with osteomyelitis. Specifically, he claims that a separate 20 percent disability rating is warranted for osteomyelitis. See November 2017 argument. He also claims he is entitled to a TDIU on an extraschedular basis. Because the Veteran's claims involve overlapping evidence, the Board will discuss the factual history in one section and provide the relevant law and analysis for each claim separately. In this case, the medical evidence of record demonstrates that the Veteran sustained an accidental wound to the left thigh in November 1958 when an M-80 firecracker exploded in his right hand during a training exercise, resulting in burns to the left leg with residual foreign bodies. The Veteran was provided a diagnosis of chronic osteomyelitis of the left femur in December 1973. In January 1974, he underwent radical sequestrectomy of the left femur with debridement and irrigation. The postoperative diagnosis was osteomyelitis with acute exacerbation and sequestra, mid-shaft, left femur. Private treatment records dated in April 1993 noted X-ray studies revealed a healed fracture to the mid-shaft of the left femur with no other significant abnormality. A May 1993 statement noted the Veteran was experiencing symptoms of peripheral neuropathy related to his osteomyelitis. In April 2005, the Veteran's spouse submitted a statement in which she noted that he experienced chronic left leg pain due to bone inflammation. She noted that, due to this pain, he was unable to drive long distances, and that he relied on pain medication in order to function. These points were reiterated in statements dated in June 2007 and September 2010. A June 2005 private bone scan revealed increased cortical density of the left femur with a suggestion of thickened periosteal reaction. It was noted that these findings were most suggestive of a possible chronic osteomyelitis. A September 2005 statement, authored by the Veteran's private provider, indicated that the Veteran continued to have discomfort in his left thigh. His most recent examination was consistent with damage to the bone from prior osteomyelitis and earlier surgical procedures. As such, the Veteran's current leg symptoms were likely the result of his service-connected disability, requiring medication for control and producing restricted functional capacity. The Veteran was afforded a VA examination in November 2005. At that time, it was noted that he had not worked in three years due to the inability to stand on his left leg. The examiner provided an in-depth review of the Veteran's medical history, to include his prior surgery and 2-month period of hospitalization and physical therapy. While chronic pain was reported since the in-service accident, it was noted that the pain waned following surgery in 1974, and then gradually worsened to the point in which he was unable to stand. Again, it was noted that these findings could be the result of an old trauma. On examination, the Veteran walked with a limp and was in obvious discomfort. He became tearful due to his pain and lack of mobility and he shifted uncomfortably in the chair during the examination. A well-healed vertical scar was observed on the upper thigh. There was tenderness to the touch at the distal aspect of the left femur, and contemporaneous X-ray studies suggested osteomyelitis. This diagnosis was supported by the examiner, who noted exquisite tenderness which would not be anticipated so long after an acute episode. The examiner indicated that the Veteran's injury resulted in a complete inability to work as a result of the left bony injury and subsequent infection. She opined that the Veteran was completely unemployable as a result of his left thigh muscle group 14 injury with resultant osteomyelitis of his left femur, which required debridement and left the Veteran with chronic intractable pain. The Veteran was uncomfortable with sitting as well as standing and it was, therefore, noted that sedentary employment would not be feasible. The examiner also noted that the Veteran had nonservice-connected diabetes with moderate peripheral neuropathy that would independently make him unemployable as well. During a November 2008 VA examination, the Veteran reported that his pain remained centered in the distal area of the left thigh and that the pain had worsened. He indicated that the pain felt like a bruise, which ached, and was relieved by weight-bearing avoidance. After standing for 30-45 minutes, the pain was described as nine out of 10. Following an examination, the examiner provided a diagnosis of osteomyelitis of the left femur with chronic pain of moderate severity and moderate functional loss. No opinion regarding the Veteran's employability was rendered. However, the examination was conducted by the same examiner who provided the November 2005 TDIU opinion, and there is nothing to suggest that her opinion differed in 2008 from her opinion in 2005. Next, of record is a January 2009 note from the Veteran's private provider, who noted that the Veteran was diagnosed with osteomyelitis in 1973 related to a service related injury from the late 1950s. The doctor noted that the Veteran had residual deficits and decreased functional ability from this and traumatic arthritis. He continued to have "quite a bit of symptoms related to this ever since then," and the symptoms had progressed. During the February 2010 Board hearing, the Veteran testified that he was unable to stand for more than 30 to 45 minutes before his left leg pain became unbearable. He also described having difficulty driving because sitting for lengthy periods resulted in his leg becoming "tied up like a knot." He indicated that he was experiencing discomfort while providing testimony. An additional VA examination, conducted in September 2010, noted the Veteran's history of chronic osteomyelitis which required periodic antibiotics from his primary care physician, the most recent series of antibiotics had been earlier that year. The Veteran described his pain as daily, constant, and severe. The pain was worse with standing and walking and made better with avoidance of activities. The Veteran also reported decreased coordination and increased fatigability with weakness and uncertainty of movement. On examination, the examiner noted a loss of deep fascia or muscle substance, though he did not elaborate on this finding. An X-ray examination was included which noted findings were unchanged from 2008 and that there was no evidence of soft tissue swelling or cortical erosion to suggest recurrent osteomyelitis. An impression was provided of a stable left femur without fracture of evidence of bone inflammation. Although the September 2010 VA examiner provided a diagnosis of left femur osteomyelitis (currently active) with residual pain, the examiner subsequently noted that X-ray and sedimentation rate studies confirmed that osteomyelitis was not active. As to the Veteran's activities of daily living, the examiner noted that exercise was prevented, and that the effect on chores was severe. As to employment, the examiner opined that the Veteran's disability would prevent a job of a physical nature, but not sedentary work. During a VA examination conducted in May 2012 it was noted that the Veteran suffered a penetrating muscle injury to muscle groups XIII, XIV, and XV. The examiner indicated that this injury resulted in pain with movement, weakness, tenderness, and a lower threshold of fatigue. The Veteran required a cane for ambulation. Amputation was not necessary, there was no evidence of retained metallic fragments, and osteomyelitis was inactive. An X-ray revealed an old fracture of the femoral shaft with no other acute injuries identified. While the examiner stated that this injury affected the Veteran's ability to work, it was again noted that sedentary employment was possible. Per the examination report, there was no evidence of active osteomyelitis. However, it was noted that the Veteran used intermittent antibiotics to treat his leg pain. The examiner noted that the Veteran's current osteomyelitis was inactive and that the Veteran had suffered from five or more episodes or recurring infections of osteomyelitis following the initial infection. The location of recurrent infections consisted of the long bones of the lower extremity, left side. While it was indicated that the Veteran had no current signs or findings attributable to osteomyelitis, the next section noted that the Veteran did have current symptoms attributable to osteomyelitis (pain, tenderness). While the examiner found no indication of active osteomyelitis on X-ray, he found that osteomyelitis did have an impact on the Veteran's ability to work in a physical capacity. The examiner did not find that sedentary employment would be limited. A private treatment report, dated in January 2014, noted that X-ray evidence raised a concern of possible infection of the left femur. It was noted that the Veteran had bone scans in the past with positive findings in this region. The examination was otherwise unremarkable, and it was noted that a three-phase bone scan may be beneficial if there is a current concern of active osteomyelitis. Such was conducted in February 2014. The indication was chronic asymmetric left femoral shaft disease, stable, associated increased nuclide uptake, consistent with chronic posttraumatic and/or postoperative change, with a component of chronic osteomyelitis not excluded. When compared to the November 2012 bone scan, there was little if any change to uptake involving the left femoral shaft. No gross cellulitis was present. In a July 2012 statement, the Veteran described being treated by his primary care physician with antibiotics for an infections caused by his osteomyelitis. An Osteomyelitis Disability Benefits Questionnaire (DBQ), received by VA in March 2014, noted that the Veteran currently had signs attributable to osteomyelitis, to include anemia and leukostasis. It was noted that osteomyelitis symptoms, such as difficulties sitting, standing, and lifting, affected the Veteran's ability to work. The Veteran was afforded VA examinations to address his claim in May 2015. Regarding osteomyelitis, the Veteran reported the use of intermittent antibiotics, though none since 2013. The examiner noted that antibiotic treatment was not noted in the Veteran's VA treatment records, nor in the available records in his VA claims file. The Veteran denied current treatment for osteomyelitis. Following an in-person examination, to include the study of X-ray evidence from 2012, the examiner deemed that this condition was inactive. It was further stated that the Veteran had no additional episodes or recurring infections following the initial infection in 1974. There were no signs, findings, or symptoms on examination which were attributable to osteomyelitis or the treatment thereof. The Veteran reported the regular use of a cane for ambulation. An X-ray in May 2012 was noted to have revealed no evidence of osteomyelitis and a complete blood count in October 2014 was noted with no other significant test findings and/or results. The examiner noted that the Veteran's disability did not rise to a level of functional impairment which would be equally well served by amputation. It was further noted that the disorder did not affect his ability to work. An August 2015 opinion from the Veteran's private provider, the same provider who authored the September 2005 opinion, noted that the Veteran had multiple service related injuries to his hands and legs. The residuals of these injuries caused marked impairment in function in their anatomical locations. The Veteran was thus unable to perform any gainful employment activities due to this decrease in function. These injuries were permanent and would not improve. The Veteran was considered permanently disabled. Of record is an August 2017 affidavit from the Veteran. He indicated that he had not worked in any capacity since 2000, when he ceased employment in the food industry. For over 10 years prior to ceasing employment in 2000, he worked in commissaries at a variety of Army posts as a civilian worker. Due to his service-connected left leg disability, his mobility was and continued to be a daily concern. His role as supervisor while working allowed him to spend the majority of his time working in an office setting rather than walking around. Only 25 percent of his time was spent on the floor of the market. After work, he would rest his leg in his office because it had become numb due to excessive use. Thereafter, severe pain would have onset. Toward the end of his working career, reported the Veteran, he would faint due to the pain. The Veteran expressed his belief that his leg disability was the main reason he is unable to work. The daily pain and discomfort would keep him from getting restful night of sleep, resulting in daytime drowsiness. He depended on a cane to ambulate, and his use of the device was constant. In recent years, he had fallen a few times. The falls were not frequent due to the Veteran's care. He described having difficulty with driving, mostly because he would lose sensation in his left foot as a result of his leg disability. In November 2017, VA received a September 2017 vocational assessment report by ZTF, a certified vocational counselor, contracted by the Veteran's representative to evaluate the Veteran's ability to secure and follow substantially gainful employment based on the Veterans' service-connected residuals of an accidental wound to the left thigh with osteomyelitis and post-operative scar with fascial defect on the left thigh. ZTF cited a review of the Veteran's entire claims file and a telephonic interview with the Veteran throughout the assessment. Of note to the counselor, the Veteran reported constantly adjusting his bodily position and taking time to walk around his deck while holding the railing due to pain and discomfort in his left leg during the interview. ZTF first noted that the Veteran last worked in 2000, and since that time his left leg pain had progressively worsened. The Veteran reported that his leg was in constant pain, the pain averaging 6-7 out of 10 daily. At around 4 to 5 P.M., his pain would intensify. Leg pain when awakening was generally intense as well, and the Veteran was unable to get out of bed unless he held onto something. The Veteran would utilize a cane 90 percent of the day due to balance issues. The Veteran informed the counselor that he was prescribed a cane by his primary care physician in the 1980s, and he would use it frequently in the 1990s. Upon retiring, he used it even more. The Veteran reported a history of falls when losing his balance, noting that his most recent fall was one week prior to his phone interview with the counselor. Throughout the day, the Veteran would need to constantly alternate positions due to leg pain. Every half hour, the Veteran walked to stretch his leg for approximately five to 10 minutes. The Veteran would need to lie down approximately three times per day in his recliner to rest with his leg elevated. The recliner was contrasted with a hard chair, where the Veteran would need to reposition himself. His left leg and foot would become numb frequently. Throughout the night, the Veteran would have pain and cramps that disrupted his sleep, resulting in restless sleep. The counselor noted that the Veteran had been dealing with limited sleep since prior to 2000, and he reported falling asleep in his office during his most recent employment. The pain had impacted the Veteran's concentration and ability to remain focused. The Veteran described being able to lift or carry a gallon of milk if standing. He could sit for an hour with constant repositioning in the seat. He would lean on a pew during church. He was able to stand for five to 10 minutes with a cane and walk approximately 30 to 40 feet with a cane and 20 feet without one. The Veteran did not kneel, stoop, or squat, and he avoided climbing stairs. He could navigate one step at his home with support. The Veteran had difficulty with balance while walking, utilizing a cane or a hand rail for stability. The counselor noted that the Veteran was a fall risk. The counselor noted that left leg pain had caused incontinence because of the Veteran's inability to reach the restroom in time. The Veteran was only able to drive 10 miles at a time. He avoided housework due to the pain in his left leg. ZTF then cited to the various opinions of record pertaining to the Veteran's claim, including the VA opinions from 2012 and 2015 that found that the Veteran's service-connected left thigh disability would impair physical but not sedentary activities. ZTF also referred to the February 2016 VA Director Memo that noted VA examiners had found that the Veteran's left thigh disability did not preclude sedentary activities. These medical records and the Veteran's statements, to include statements describing his need to adjust position and move, his constant pain, difficulty with balance, and his impacted ability to maintain concentration and focus, were considered and it was found that it was at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment, to include unskilled sedentary employment, based on his service-connected conditions, since he last worked in 2000 and continuing until present time. ZTF continued, expressing his disagreement with the VA opinions from the May 2012 and May 2015 VA examinations that found that the Veteran's left leg condition would not impact his ability to perform sedentary work. In his vocational opinion, he found that the Veteran had not been able to consistently work at the sedentary level and achieve substantially gainful activity. Referring to the Dictionary of Occupational Titles, he defined sedentary employment as exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull, or otherwise move objects, including the human body. ZTF noted that sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs were sedentary if walking and standing are required only occasionally, and all other functions were sedentary in nature. In addition to providing this clarification on sedentary employment, the counselor noted that the Veteran had difficulty sitting for more than 15 minutes. When sitting, the Veteran would need to constantly reposition himself until it became necessary to stand and walk for five to 10 minutes in order to relieve the pain in his left leg. While standing, the Veteran would be off-task from necessary job duties in a sedentary employment setting. Further, ZTF found that the Veteran's concentration and focus were impacted by his pain, fatigue due to poor sleep that is interrupted by pain, and the side effects of his medication. When he was still working, the Veteran would fall asleep in his office, and he had experienced constant difficulty maintaining focus and concentration. When performing a task at the sedentary level, he continued to be unable to maintain focus and concentration with necessary job tasks. His leg would also feel numb and decrease his ability to maintain his balance. Even at the sedentary level, there would be standing or walking for brief periods of time. When standing or walking during these periods, the Veteran was at risk for falling and hurting himself or other employees. The Veteran also needed to lie down and elevate his leg two to three times per day for an extended period of time. ZTF found that the combination of the Veteran's limitations rendering him off-task due to walking, repositioning, his inability to maintain concentration and focus, his need to lie down, and his increased risk of falling, would not be tolerated by an employer. ZTF opined that the Veteran was unable to consistently engage in any task and would be unable to meet the requirements to produce and complete work tasks in a timely manner by an employer at any physical demand level. He continued, noting that contrary to the 2012 and 2015 opinions, a VA examiner had provided a favorable opinion in November 2005 and found that the Veteran was uncomfortable with sitting as well as standing, and therefore sedentary employment would not be feasible. ZTF concluded by finding, in his vocational opinion, that the combination of the limitations imposed by the Veteran's service-connected disabilities precluded his ability to maintain concentration and focus for extended periods of time, complete work within regularly scheduled breaks, and maintain safety from increased falling and risk of injury at the sedentary exertional level by competitive employers. While the Veteran may suffer from limitations from nonservice-connected disabilities, noted ZTF, his opinion regarding unemployability was based solely on the Veteran's service-connected disorders. II. Entitlement to a Separate Disability Rating for Osteomyelitis Here, service connection has been established for residuals of an accidental wound to the left thigh, with osteomyelitis. The RO evaluated the Veteran's disability under Diagnostic Codes 5314-5000 and assigned a 10 percent evaluation. In the October 2016 decision, the Board awarded an increased 30 percent rating, effective May 17, 2012. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When determining the severity of musculoskeletal disabilities, which are at least partly-rated on the basis of range of motion, VA must also consider the extent the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated due to the extent of pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). The provisions of Diagnostic Code 5000 for osteomyelitis (acute, subacute, or chronic) include a 100 percent rating with involvement of the pelvis, vertebrae, or extending into major joints, or with multiple localization or with long history of intractability and debility, anemia, amyloid liver changes, or other continuous constitutional symptoms. A 60 percent rating is appropriate with frequent episodes, with constitutional symptoms. A 30 percent rating is indicative of definite involucrum or sequestrum, with or without discharging sinus. A 20 percent rating is warranted with discharging sinus or other evidence of active infection within the past 5 years. A 10 percent evaluation is assigned for inactive osteomyelitis following repeated episodes, without evidence of active infection in past 5 years. 38 C.F.R. § 4.71a, Diagnostic Code 5000 (2017). A rating of 10 percent, as an exception to the amputation rule, is to be assigned in any case of active osteomyelitis where the amputation rating for the affected part is zero percent. This 10 percent rating and the other partial ratings of 30 percent or less are to be combined with ratings for ankylosis, limited motion, nonunion or malunion, shortening, etc., subject, of course, to the amputation rule. The 60 percent rating, as it is based on constitutional symptoms, is not subject to the amputation rule. A rating for osteomyelitis will not be applied following cure by removal or radical resection of the affected bone. 38 C.F.R. § 4.71a, Diagnostic Code 5000, Note (1). The provisions of Diagnostic Code 5314 provide that the function of Muscle Group XIV is the extension of knee; simultaneous flexion of hip and flexion of knee; tension of fascia lata and iliotibial (Maissiat's) band, acting with Muscle Group XVII in postural support of body; and acting with hamstrings in synchronizing hip and knee. This muscle group includes the sartorius, rectus femoris, vastus externus, vastus intermedius, vastus intemus, and tensor vaginae femoris. A 10 percent rating is provided for a moderate injury. A 30 percent rating requires moderately severe injury, and a 40 percent rating requires severe injury. 38 C.F.R. § 4.73, Diagnostic Code 5314. Chronic, or recurring, suppurative osteomyelitis, once clinically identified, including chronic inflammation of bone marrow, cortex, or periosteum, should be considered as a continuously disabling process, whether or not an actively discharging sinus or other obvious evidence of infection is manifest from time to time, and unless the focus is entirely removed by amputation will entitle to a permanent rating to be combined with other ratings for residual conditions, however, not exceeding amputation ratings at the site of election. 38 C.F.R. § 4.43. Analysis Initially, the Board addresses a threshold issue raised by Note (1) of DC 5000, which holds that a rating for osteomyelitis will not be applied following cure by removal or radical resection of the affected bone. As noted above, in January 1974, the Veteran underwent radical sequestrectomy of the left femur with debridement and irrigation. However, it is clear by subsequent diagnoses and annotations throughout the record that the Veteran's osteomyelitis was not "cured", and Note (1) does not operate to preclude a separate rating for osteomyelitis. Nor is there any basis to preclude a separate musculoskeletal rating, DC 5000, from the distinct manifestations of a muscle injury rating, DC 5314, in this case. After a thorough review of the record, and with consideration of the May 2017 JMPR, the Board resolves reasonable doubt in the Veteran's favor and finds that a separate 20 percent disability rating is warranted for the entire appeal period under DC 5000. In November 2005, the VA examiner indicated exquisite tenderness would not be anticipated so long after the Veteran's in-service osteomyelitis, suggesting some current involvement. This is supported by the private bone scan from June 2005 that showed possible chronic osteomyelitis. This is also supported by the Veteran's private provider, who noted in September 2005 that the Veteran required medications for control of his symptoms and explained in January 2009 that the Veteran had residual deficits and decreased functional ability from osteomyelitis, among other conditions. The VA examiner in September 2010 noted that the Veteran required periodic antibiotics from his primary care physician to treat his chronic osteomyelitis, the most recent series of antibiotics being prescribed earlier that year. The examiner eventually concluded that osteomyelitis was inactive at that time. The May 2012 VA examiner made similar remarks, noting that there was no current evidence of active osteomyelitis but that the Veteran had used intermittent antibiotics for treatment purposes. The examiner explained that osteomyelitis was inactive and that the Veteran had suffered from five or more episodes of recurring infections of osteomyelitis following his initial infection. The Board notes that the annotation of "five or more episodes of recurring infections" was provided on a disability benefits questionnaire that did not provide an option to express a greater amount of recurring infections. Further, in the July 2012 statement, the Veteran described taking antibiotics earlier that year to treat what his doctor believed was an infection caused by osteomyelitis. This evidence is supports a finding that the Veteran's osteomyelitis resulted in active infection in less than five year increments throughout the appeal period. In September 2005, the Veteran's private provider noted that medications were required to treat the condition, which Board acknowledges does not necessarily mean antibiotics to treat an active infection. However, the private provider suggested a similar treatment pattern in January 2009, and the VA examiner in September 2010 noted that the Veteran had required antibiotics to treat his osteomyelitis earlier that year. This was confirmed in the May 2012 VA examination, who noted that the Veteran had treated osteomyelitis intermittently for five or more times since the initial infection. During the February 2010 Board hearing, the Veteran indicated that he received treatment for osteomyelitis from his private provider. Thus, it would follow that the available VA treatment records would not document such treatment. Therefore, with resolution of reasonable doubt in the Veteran's favor, the Board finds that the Veteran's osteomyelitis approximates the criteria for a separate 20 percent rating under DC 5000. As this rating is awarded for osteomyelitis with evidence of an active infection within the previous five years, the Board finds that the assignment of a separate rating does not violate VA's prohibition against pyramiding. The presently assigned ratings for the service-connected residuals of an accidental left thigh wound contemplate moderate to moderately severe symptoms, which is not necessary contemplated in rating criteria premised on a finding of whether osteomyelitis is active or inactive inside a five year period. A higher rating is not for application under DC 5000, however. The Board notes that the DBQ received in 2014 shows the annotation that osteomyelitis resulted in anemia. However, there is nothing to suggest that there was a long history of anemia, which is one of the criteria for a total disability rating under DC 5000. In addition, no other symptoms or findings pertaining to an increased rating under DC 5000 are of record. In this case, the Board finds the schedular rating criteria adequate to rate the Veteran's separately rated osteomyelitis. A comparison between the level of severity and symptomatology with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Accordingly, the Board finds consideration of an extraschedular rating unwarranted. III. TDIU The Veteran contends that he is unable to maintain gainful employment as the result of his service-connected disabilities. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. In 2013, the Board determined that a remand was warranted to adequately address the Veteran's TDIU/extra-schedular claim. The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Here, the Veteran is in receipt of a combined total evaluation of 40 percent (30 percent for residuals of a shell fragment wound, and 10 percent for the associated scar). In cases such as this one, where the Veteran claims unemployability by reason of service-connected disabilities but does not meet the schedular criteria under 38 C.F.R. § 4.16(a), the rating board is authorized to refer the case to the Director, Compensation and Pension Service, for assignment of an extra-schedular evaluation. 38 C.F.R. § 4.16(b). In order to grant TDIU in this case, the record must reflect that circumstances, apart from non-service-connected conditions, place the Veteran in a different position than other veterans having the same compensation rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment," in part, by noting the following standard announced by the United States Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Id. A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the Veteran. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. §§ 3.102, 4.4 (2017). Applicable regulations place responsibility for the ultimate total disability rating based on individual unemployability determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The record suggests the Veteran retired in part due to nonservice-connected disabilities, listed variously as a stroke and diabetes mellitus. See e.g. February 2009 Hand, Thumb, and Fingers VA examination. Conversely, the Veteran has reported that his last employment working in a commissary, ended because the employer ceased operations. See September 2017 Vocational Assessment. In any event, the Veteran has been unemployed the entire appeal period and has consistently asserted that his service-connected residuals of a left thigh injury with osteomyelitis have rendered him unable to secure or follow substantially gainful employment. Although all of the service-connected disabilities arose from a single accident, the Veteran does not qualify for a TDIU on a schedular basis, even with the award of a separate disability rating for osteomyelitis. In February 2016, the Directory of VA's Compensation Service rendered an advisory opinion that denied an extraschedular TDIU. The Board notes, however, that it is not bound by an adverse determination by the Director regarding extraschedular entitlement to TDIU, which is in essence a decision by the agency of original jurisdiction reviewable de novo by the Board, and thus, no different than a RO's decision in terms of its effect on the Board's statutory jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2016). After a thorough review of the record, the Board resolves reasonable doubt in the Veteran's favor and finds that an extraschedular TDIU is warranted for the entire appeal period. The evidence is composed of opinions for and against the Veteran's claim. For instance, the September 2010 and May 2012 VA examiners found that, though physical employment was precluded by the Veteran's service-connected disorders, he was not prevented from working in a sedentary capacity. The Board notes that the September 2010 and May 2012 opinions were provided by the same examiner, and so there is no coincidence in the similarities in the resulting opinions. The May 2015 VA examiner found that osteomyelitis had no impact on the Veteran's ability to work and that his muscle disability, also service-connected, would impair load bearing, physical activities, but no sedentary activities. Conversely, the November 2005 VA examiner indicated that the Veteran's injury resulted in a complete inability to work as a result of the left bony injury and subsequent infection. She opined that the Veteran was completely unemployable as a result of his left thigh muscle group 14 injury with resultant osteomyelitis of his left femur, which required debridement and now leaves the Veteran with chronic intractable pain. She noted that the Veteran was uncomfortable with sitting as well as standing and, therefore, sedentary employment would not be feasible. Echoing the findings of the November 2005 VA examiner, the vocational rehabilitation counselor who provided the September 2017 opinion, ZTF, focused on the Veteran's need to adjust positions constantly to cope with his pain as symptom of the Veteran's service-connected disorder that precluded sedentary employment. Of particular note, going beyond his conclusion that the Veteran's disability made sitting for longer periods impossible, ZTF presented argument that sedentary employment would still require occasional load bearing of up to 10 pounds and would still require periods of walking and standing, or activities that were severely limited for the Veteran. ZTF also referred to symptoms of the Veteran's condition other than pain, such as his inability to focus due to constant pain or daytime drowsiness due to the Veteran's inability to sleep well due to pain, as evidence that the Veteran could not work in any capacity. The proposition that the Veteran had difficulty sitting due to his service-connected disorder is not limited to the etiological opinions of record. In the February 2010 Board hearing, the Veteran testified that he would encounter pain and knots when sitting for a time. The Board is satisfied with the record in finding that the Veteran's service-connected residuals of an accidental wound to the thigh and osteomyelitis have precluded his ability to secure or follow substantially gainful employment, even in a sedentary capacity. The Board has weighed the evidence and finds that the rationale provided by the November 2005 VA examiner and the vocational specialist in September 2017 supports this finding. Conversely, limited rationale is provided for the September 2010, May 2012, and May 2015 VA opinions that summarily conclude that the Veteran could work in a sedentary capacity. These opinions do not account for all of the Veteran's service-connected disability manifestations including credible statements that he experiences severe pain and would need to adjust his positioning regularly, rising to stretch his lower extremity for relief at regular intervals, and recline consistently to alleviate his symptoms. Therefore, the Board resolves reasonable doubt in favor of the Veteran and awards entitlement to TDIU on an extraschedular basis. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to a separate disability rating of 20 percent, but no higher, is granted for service-connected osteomyelitis, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ T. L. Douglas Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs