Citation Nr: 18144405 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 09-42 358A DATE: October 25, 2018 ORDER New and material evidence to reopen the claim for service connection for a right wrist disability has not been received. New and material evidence to reopen the claim for service connection for a left wrist disability has not been received. New and material evidence to reopen the claim for service connection for a left knee disability has not been received. New and material evidence to reopen the claim for service connection for a right knee disability has not been received. A rating in excess of 60 percent for neurodermatitis is denied. A total disability rating for compensation based on individual unemployability (TDIU) is denied. Service connection for a right ankle disability is denied. Service connection for skeletal arthritis is denied. Service connection for a cold weather injury of the upper and lower extremities is denied. Service connection for a muscle disability of the lower or upper extremities is denied. Service connection for a left ankle sprain, to include as associated with a right ankle disability, is denied. New and material evidence to reopen the claim for service connection for a psychiatric disability has not been received. New and material evidence to reopen the claim for service connection for hypertension has not been received. New and material evidence to reopen the claim for service connection for a heart disorder has not been received. New and material evidence to reopen the claim for service connection for a sleep disorder has not been received. FINDINGS OF FACT 1. An October 2008 rating decision denied service connection for a bilateral wrist injury and a right knee injury and found that new and material evidence had not been received to reopen a claim for service connection for a left knee disability; the Veteran was notified of the October 2008 rating decision and of his appellate rights in an October 2008 letter; he did not perfect a timely appeal with respect to these denials in the October 2008 rating decision and no pertinent exception to finality applies. 2. No evidence associated with the record since the October 2008 rating decision raises a reasonable possibility of substantiating the Veteran’s claims for service connection for a bilateral wrist or knee disability. 3. The Veteran is in receipt of the highest schedular rating for neurodermatitis. 38 U.S.C. § 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.118, Diagnostic Code (DC) 7806 (2018). 4. Service connection is in effect for neurodermatitis, rated as 60 percent disabling, and athlete’s feet and erectile dysfunction, each rated noncompensable; the service connected disabilities combine to be 60 percent disabling. 5. The Veteran has education through 2 years of college and work experience as a supervisor; he reports that he became too disabled to work in May 2010. 6. The Veteran’s service-connected disabilities do not prevent him from securing and following a substantially gainful occupation with consideration of all factors bearing on the issue, to include his employment history and educational and vocational attainment. 7. The most probative evidence of record weighs against a conclusion that the Veteran has a right or left ankle disability, skeletal arthritis, a cold weather injury of an upper or lower extremity, or a muscle disability of an upper or lower extremity that was incurred in service. 8. Service connection for a psychiatric disability was denied by an August 1982 rating decision; the Veteran was notified of this decision and of his appellate rights in an August 1982 letter; he did not perfect a timely appeal with respect to the August 1982 denial of service connection for a psychiatric disability and no pertinent exception to finality applies. 9. Service connection for a sleep disorder was denied by a rating decision dated in May 1987; the Veteran was notified of the May 1987 decision and of his appellate rights in a June 1987 letter; he did not perfect a timely appeal with respect to the May 1987 denial of service connection for a sleep disorder and no pertinent exception to finality applies. 10. A January 1991 Board decision to which the Veteran did not file an appeal denied service connection for a sleep disorder. 11. An August 1991 rating decision denied service connection for a neuropsychiatric disorder with a sleep disorder as secondary to service connected neurodermatitis; the Veteran was notified of the August 1991 decision and of his appellate rights in a September 1991 letter; he did not perfect a timely appeal with respect to the August 1991 denial of service connection for a neuropsychiatric disorder with a sleep disorder and no pertinent exception to finality applies. 12. No evidence associated with the record since the August 1991 rating decision raises a reasonable possibility of substantiating the Veteran’s claims for service connection for a psychiatric disability or a sleep disorder. 13. A July 2003 rating decision denied service connection for hypertension; the Veteran was notified of the July 2003 rating decision and of his appellate rights in an August 2003 letter; he did not perfect a timely appeal with respect to the July 2003 denial of service connection for hypertension and no pertinent exception to finality applies. 14. No evidence associated with the record since the July 2003 rating decision raises a reasonable possibility of substantiating the Veteran’s claim for service connection for hypertension. 15. A December 2012 rating decision denied service connection for a heart disorder; the Veteran was notified of the December 2012 rating decision and of his appellate rights in a December 2012 letter; he did not perfect a timely appeal with respect to the December 2012 denial of service connection for a heart disorder and no pertinent exception to finality applies. 16. No evidence associated with the record since the December 2012 rating decision raises a reasonable possibility of substantiating the Veteran’s claim for service connection for a heart disorder. CONCLUSIONS OF LAW 1. The October 2008 rating decision that denied service connection for a bilateral wrist injury and a right knee injury and found that new and material evidence had not been received to reopen a claim for service connection for a left knee disability is final. 38 U.S.C.§ 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 2. New and material evidence has not been received to reopen the previous denial of the claims for service connection for bilateral wrist and knee disabilities. U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156(a) (2018). 3. A schedular rating in excess of 60 percent for neurodermatitis cannot be assigned as a matter of law. 38 U.S.C. § 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.20, 4.118, Diagnostic Code (DC) 7806 (2018). 4. The criteria for TDIU have not been met. 38 U.S.C. §§ 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 4.16 (2018). 5. The criteria for service connection for a right or left ankle disability, skeletal arthritis, a cold weather injury of an upper or lower extremity, or a muscle disability of a lower or upper extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 6. The August 1982 rating decision that denied service connection for a psychiatric disability is final. 38 U.S.C.§ 4005(c) (1976);38 C.F.R. § 3.104, 19.118, 19.153 (1982). 7. The January 1991 Board decision that denied service connection for a sleep disorder is final. 38 U.S.C. § 4004(b) (1988); 38 C.F.R. § 20.1100 (1990). 8. The August 1991 rating decision denied service connection for a neuropsychiatric disorder with a sleep disorder as secondary to service connected neurodermatitis is final. 38 U.S.C.§ 7105(c) (1991); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1991). 9. New and material evidence has not been received to reopen the previous denial of the claims for service connection for a psychiatric disability or a sleep disorder. U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156(a) (2018). 10. The July 2003 rating decision that denied service connection for hypertension is final. 38 U.S.C.§ 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003). 11. New and material evidence has not been received to reopen the previous denial of the claim for service connection hypertension. U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156(a) (2018). 12. The December 2012 rating decision that denied service connection for a heart disorder is final. 38 U.S.C.§ 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 13. New and material evidence has not been received to reopen the previous denial of the claim for service connection for a heart disorder. U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As listed on the first page of this decision, the issues of service connection for a right ankle condition thru the matter of whether new and material evidence to reopen the claim for service connection for a sleep disorder are on appeal based on the submission of a timely substantive appeal in September 2017 following a statement of the case addressing these issues dated earlier in that month that was completed pursuant to a February 2017 Board of Veterans’ Appeals (Board) remand for consideration of these claims under the holding in Manlincon v. West, 12 Vet. App. 238 (1999). Two additional issues remanded by the Board in February 2017 remand, entitlement to service connection for a stomach disability and erectile dysfunction, were granted by rating decisions dated in September 2017. As a final initial matter, the undersigned notes that the Veteran was informed by letter dated in July 2018 that the Veterans Law Judge who presided at his October 2016 is no longer employed by the Board, and that he had the right to a hearing before another Veterans Law Judge prior to a decision in his appeal. The Veteran responded to this letter in August 2018 indicating that he did not desire another hearing before a Veterans Law Judge. I. Service Connection Claims When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include arthritis and cardiovascular disorders to include hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to a “chronic” diseases listed under 38 C.F.R. § 3.309(a), such as arthritis and cardiovascular disorders to include hypertension. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The service treatment reports (STRs) in pertinent part reflect treatment for a right ankle strain in October 1974 but reflect a negative March 1974 x-ray of the left ankle and are otherwise silent for an ankle disability, skeletal arthritis, a cold weather injury of the upper or lower extremity, or a muscle disability of the lower or upper extremity. After his separation from service in November 1978, the Veteran’s initial application for service connection filed in March 1979 was limited to a claim for service connection for a dermatologic disability. Thereafter, multiple applications for service connection did not reference an ankle disability, skeletal arthritis, a cold weather injury of the upper or lower extremity, or a muscle disability of the lower or upper extremity until the Veteran’s March 2013 claim for service connection for such disabilities. The post service evidence includes a September 2010 statement from a private physician noting that he had treated the Veteran for disabilities to include spinal stenosis and spondyloarthritis since May 1990. A February 2011 VA examination resulted in a diagnosis of arthritis of the right ankle and spine. A May 2017 VA examination included negative x-ray of each ankle and resulted in the conclusion by the examiner that it was less likely as not that the Veteran had a left or right ankle disability that was the result of service. There is otherwise no medical evidence indicating that the Veteran has a current ankle disability, skeletal arthritis, a cold weather injury of an upper or lower extremity, or a muscle disability of a lower or upper extremity that is the result of service. To the extent the assertions of the Veteran or his representative are being advanced in an attempt to establish that he has current disability due to an ankle disorder, skeletal arthritis, a cold weather injury of an upper or lower extremity, or a muscle disability of a lower or upper extremity, such complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative are shown to have appropriate training and expertise, neither are competent to render a persuasive opinion as to such matters. Id. To the extent the Veteran would be competent to describe certain symptoms of the disabilities at issue from service to the present time, the Board finds them to not to be credible given his silence, when he was otherwise affirmatively speaking, as to these disabilities in his original application for service connection submitted in March 1979. Also weighing against the credibility of any assertions of continuity of relevant symptomatology from service to the present time is that fact that it was well over 30 years after service that the Veteran filed a claim for service connection for the disabilities at issue. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the appellant failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As a final matter, as arthritis of the ankles or skeletal arthritis is not demonstrated within one year of service, presumptive service connection for these disabilities on the basis of chronic disease, to include by way of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for an ankle disability, skeletal arthritis, a cold weather injury of an upper or lower extremity, or a muscle disability of a lower or upper extremity. As such, these claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. II. New and Material Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a) (2017). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), “A must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.” Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). “[N]ew and material evidence” under 38 C.F.R. § 3.156(b) has the same meaning as “new and material evidence” as defined in38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A. Wrists and Knees An October 2008 rating decision denied service connection for a bilateral wrist injury and a right knee injury and found that new and material evidence had not been received to reopen a claim for service connection for a left knee disability. (This decision referred to an unappealed December 1987 rating decision that denied service connection for a left knee disability, but the current record does not reflect such a rating decision). The evidence then of record included the STRs, which in pertinent part reflected treatment for right wrist carpal snuff box pain in February 1977 after a jack slipped in the Veteran’s right hand. An x-ray of the right wrist conducted at that time was negative. The STRs contained no reference to a left wrist disability. The STRs also showed treatment for right knee pain in August 1973 but did not reflect treatment for a left knee disability. Also of record at the time of the October 2008 rating decision were reports from an August 2008 VA examination that resulted in the opinion that the Veteran did not have a right wrist or knee disability that was the result of service. The Veteran was notified of the October 2008 decision and of his appellate rights in an October 2008 letter. He did not perfect a timely appeal with respect to this decision; no additional evidence was received within the one-year appeal period following the October 2008 rating decision; and no additional service department records have since been associated with the claims file warranting reconsideration of the claims for service connection for bilateral wrist and knee disabilities. Therefore, the October 2008 rating decision is final as to the evidence then of record, and is not subject to reconsideration on the same factual basis. 38 U.S.C.§ 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). The October 2008 rating decision is the only final rating decision addressing the claims for service connection for bilateral wrist and knee disabilities on any basis. The evidence received since the October 2008 rating decision includes reports from a February 2011 VA examination that diagnosed the Veteran with bilateral knee and wrist arthritis. Also received were reports from X-rays conducted of the both wrists and knees in June 2017 that resulted in normal findings. June 2017 VA examinations resulted in the opinions that the Veteran did not have a disability in either wrist or knee that was the result of service. Review of the evidence received since the October 2008 rating decision—to include VA outpatient treatment reports dated through September 2017—in connection with the Veteran’s petition to reopen the claims for service connection for bilateral wrist and knee disabilities does not otherwise reflect any evidence that links a wrist or knee disability to service or demonstrates the presence of arthritis in either wrist or knee within one year of service. As for the contentions submitted by and on behalf of the Veteran since the October 2008 rating decision, these lay assertions do not constitute material evidence. Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions on medical causation do not constitute material evidence to reopen a previously denied claim). As such, the record since the October 2008 rating decision rating decision reveals no evidence or statements that raise a reasonable possibility of substantiating the claims for service connection for a bilateral wrist or knee disability. Therefore, the Board concludes that new and material evidence has not been received with respect to the claims for service connection for bilateral wrist and knee disabilities, and the criteria for reopening these claims are therefore not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).   B. Sleep/Psychiatric Disorder Service connection for a psychiatric disability—as secondary to the service-connected skin disorder—was initially denied by an August 1982 rating decision. The evidence then of record included the STRs, which were silent for a psychiatric disability. There was no evidence than of record of a psychiatric disability. The Veteran was notified of the August 1982 decision and of his appellate rights in an August 1982 letter. He did not perfect a timely appeal with respect to this decision; no additional evidence was received within the one-year appeal period following the August 1982 rating decision; and no additional service department records have since been associated with the claims file that were not of record at the time of this decision. Therefore, the August 1982 rating decision is final as to the evidence then of record, and is not subject to reconsideration on the same factual basis. 38 U.S.C.§ 4005(c) (1976); 38 C.F.R. § 3.104, 19.118, 19.153 (1982). Thereafter, a January 1991 Board decision denied service connection for a sleep disorder. The Veteran did not appeal this decision to the Court; as such, it is final. 38 U.S.C. § 4004(b) (1988); 38 C.F.R. § 20.1100 (1990). The evidence of record at the time of the January 1991 Board decision included the STRs, which reflected one instance of the Veteran sleeping on duty due to the inability to sleep at night. The post service evidence then of record included an April 1986 VA clinical report that noted the Veteran was sleeping a little bit better, but that he still woke up at night and could not sleep in hot weather. Also of record were clinical reports noting that the Veteran had no problems with sleeping if he took his prescribed medication. A July 1988 VA examination noted the Veteran reporting problems with sleeping when he did not take his prescribed medication. Reports from an April 1990 VA examination reflect complaints of sleep problems. Following the January 1991 Board decision, an August 1991 rating decision denied service connection for a neuropsychiatric disorder with a sleep disorder as secondary to service connected neurodermatitis. Additional evidence then of record received after the January 1981 Board decision included VA clinical records dated from the mid to late 1980s reflecting diagnose to include atypical anxiety disorder and a report from a May 1991 VA sleep study that did not reveal sleep apnea but did reveal REM related hypopnea. The Veteran was notified of the August 1991 decision and of his appellate rights in a September 1991 letter. He did not perfect a timely appeal with respect to this decision; no additional evidence was received within the one-year appeal period following the August 1991 rating decision; and no additional service department records have since been associated with the claims file that were not of record at the time of this decision. Therefore, the August 1991 rating decision is final as to the evidence then of record, and is not subject to reconsideration on the same factual basis. 38 U.S.C.§ 7105(c) (1991); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1991). The August 1991 rating decision is the most recent final adjudication denying service connection for a psychiatric or sleep disorder on any basis. The evidence received since the August 1991 rating decision includes VA outpatient treatment reports dated through September 2017, some of which reflect sleep apnea. These records also reflect treatment for anxiety and depression, to include with medication. Review of the evidence received since the August 1991 rating decision—to include VA outpatient treatment reports dated through September 2017—in connection with the Veteran’s petition to reopen the claim for service connection for a psychiatric or sleep disorder does not reflect any evidence that links a psychiatric or sleep disorder to service. As for the contentions submitted by and on behalf of the Veteran since the August 1991 rating decision linking such disorders to service these, these lay assertions do not constitute material evidence. Moray, supra. As such, the record since the August 1991 rating decision rating decision reveals no evidence or statements that raise a reasonable possibility of substantiating the claims for service connection for a sleep disorder or a psychiatric disorder. As such, the Board concludes that new and material evidence has not been received with respect to the claims for service connection for a sleep disorder or a psychiatric disorder, and the criteria for reopening these claims are therefore not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). C. Hypertension A July 2003 rating decision denied service connection for hypertension. The evidence then of record included the STRs that were silent for hypertension and medical records that did not reveal a diagnosis of hypertension within one year of separation form service. The Veteran was notified of the July 2003 rating decision and of his appellate rights in an August 2003 letter. He did not perfect a timely appeal with respect to this decision; no additional evidence was received within the one-year appeal period following the July 2003 rating decision; and no additional service department records have since been associated with the claims file that were not of record at the time of this decision. Therefore, the July 2003 rating decision is final as to the evidence then of record, and is not subject to reconsideration on the same factual basis. 38 U.S.C.§ 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003). The July 2013 rating decision is the only final adjudication denying service connection for hypertension on any basis. The evidence received since the July 2003 rating decision—to include VA outpatient treatment reports dated through September 2017—in connection with the Veteran’s petition to reopen the claim for service connection for hypertension does not reflect any evidence that links hypertension to service or demonstrates the presence of hypertension within one year of service. As for the contentions submitted by and on behalf of the Veteran since the July 2003 rating decision linking hypertension to service, these lay assertions do not constitute material evidence. Moray, supra. As such, the record since the July 2003 rating decision rating decision reveals no evidence or statements that raise a reasonable possibility of substantiating the claim for service connection for hypertension. Therefore, the Board concludes that new and material evidence has not been received with respect to the claim for service connection for hypertension, and the criteria for reopening this claim are therefore not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). D. Heart disorder A December 2012 rating decision denied service connection for a heart disorder. The evidence then of record included the STRs that were silent for a heat disorder and medical records that did not reveal a diagnosis of a heart disorder within one year of separation form service. The Veteran was notified of the December 2012 rating decision and of his appellate rights in a December 2012 letter. He did not perfect a timely appeal with respect to this decision; no additional evidence was received within the one-year appeal period following the December 2012 rating decision; and no additional service department records have since been associated with the claims file that were not of record at the time of this decision. Therefore, the December 2012 rating decision is final as to the evidence then of record, and is not subject to reconsideration on the same factual basis. 38 U.S.C.§ 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The December 2012 rating decision is the most recent final adjudication denying service connection for a heart disorder on any basis. The evidence received since the December 2012 rating decision—to include VA outpatient treatment reports dated through September 2017—in connection with the Veteran’s petition to reopen the claim for service connection for a heart disorder does not reflect any evidence that links a heart disorder to service or demonstrates the presence of a heart disorder within one year of service. As for the contentions submitted by and on behalf of the Veteran since the December 2012 rating decision linking a heart disorder, again, these lay assertions do not constitute material evidence. Moray, supra. As such, the record since the December 2012 rating decision rating decision reveals no evidence or statements that raise a reasonable possibility of substantiating the claim for service connection for hypertension. Therefore, the Board concludes that new and material evidence has not been received with respect to the claim for service connection for a heart disorder, and the criteria for reopening this claim are therefore not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Increased Rating for Neurodermatitis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. While the Veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. A 10 percent rating for eczema or dermatitis requires at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. A 30 percent rating for eczema or dermatitis requires 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A 60 percent rating is assigned for eczema or dermatitis with more that 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12 month period. Id. The highest assignable rating under DC 7806 is 60 percent. The Veteran’s neurodermatitis has been rated at 60 percent under DC 7806 for the entirety of the appeal period. This is the highest assignable rating under DC 7806. As such, and as there is no other potentially relevant diagnostic code which would provide for a rating in excess of 60 percent for the service connected neurodermatitis and the matter of an extraschedular rating has not been raised or indicated by the evidence of record, a rating in excess of 60 percent for neurodermatitis cannot be assigned as a matter of law. 38 C.F.R. § 4.118, DC 7806; Sabonis v. Brown, 6 Vet. App. 426, 430, (1994). TDIU TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his employment and educational history. 38 C.F.R. §4.16(b). If the Board determines that TDIU is warranted on an extraschedular basis, the matter must be referred to the Director for consideration of such as the Board does not have the authority to assign an extraschedular TDIU in the first instance. Id., Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is “that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests “a living wage.” Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined “substantially gainful employment” as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) (“marginal employment shall not be considered substantially gainful employment”). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to her service-connected disabilities but the functional impairment caused solely by service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013). Service connection is in effect for neurodermatitis, rated as 60 percent disabling, and athlete’s feet and erectile dysfunction, each rated noncompensable. The service connected disabilities combine to be 60 percent disabling. As such, the objective criteria under 38 C.F.R. § 4.16(a) are therefore not met. This fact notwithstanding, the matter of whether TDIU can be granted on an extraschedular basis under 38 C.F.R. § 4.16(b) is for consideration. A VA Form 21-8940 “Veteran’s Application for Increased Compensation Based on Unemployability” received in November 2010 reflects the Veteran reporting education through 2 years of college and work experience as a supervisor. He indicated therein that he became too disabled to work in May 2010. Reports from the Social Security Administration indicate the Veteran has been found to be disabled under the guidelines of this agency effective from May 2010. This finding, which is otherwise not binding on this adjudication, was based on non-service connected disabilities of degenerative disc disease in the cervical spine and a status post neck bullet wound with retained fragments. Occupational impairment due to these non-service-connected disabilities in the cervical spine/ neck may not be considered in determining whether the criteria for TDIU may be warranted An April 2017 VA skin examination found no functional impairment due to the Veteran’s neurodermatitis, and the record is otherwise devoid of any competent evidence that includes a finding that there is such functional impairment due to service-connected neurodermatitis, athlete’s feet, and erectile dysfunction as to render the Veteran unemployable. To the extent that the Veteran might have difficulty finding employment, the sole fact that a claimant may have difficulty obtaining employment is not sufficient for a grant of TDIU. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As such, the question for consideration herein is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. In this case, the clinical evidence of record simply weighs against the conclusion that the Veteran’s service-connected disabilities, by themselves, have rendered him incapable of obtaining or maintaining substantially gainful employment, particularly with consideration of the Veteran’s education through two years of college and employment as a supervisor. While the Board accepts the Veteran’s assertions with regard to his asserted unemployability due to service connected disability, the Board places more probative weight upon the lack of any competent evidence indicating that the service connected neurodermatitis, athlete’s feet, and erectile dysfunction have rendered the Veteran unemployable with consideration of his educational and occupational background. In short, the Board finds that the preponderance of the evidence is against the claim for TDIU; therefore, entitlement to TDIU must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.7; Gilbert, 1 Vet. App. at 49. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel