Citation Nr: 18157003 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 15-07 357 DATE: December 11, 2018 ORDER For the rating period from September 8, 2016 to the present, an increased disability rating of 20 percent for the service connected arthritis of the left tarsal bone is granted. For the rating period from October 28, 2009 to the present, an increased disability rating in excess of 20 percent for the service connected arthritis of the left tarsal bone is denied. As the May 17, 1966 Department of Veterans Affairs (VA) Reginal Office (RO) rating decision contained clear and unmistakable error (CUE) in the denial of service connection for arthritis of the left tarsal bone, the May 17, 1966 rating decision is revised to reflect a grant of service connection for arthritis of the left tarsal bone, effective February 19, 1966. The appeal on the issue of an effective date prior to October 28, 2009 for the grant of service connection for arthritis of the left tarsal bone is dismissed. A total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the rating period from September 8, 2016, the service connected arthritis of the left tarsal bone manifested as marked limitation of motion. 2. For the rating period from October 28, 2009, the service connected arthritis of the left tarsal bone did not manifest as ankylosis of the ankle or symptoms consistent with a severe foot injury. 3. A May 17, 1966 RO rating decision denying service connection for arthritis of the left tarsal bone was not based on the law and evidence then of record, and did not constitute a reasonable exercise of rating judgment; but for the factual and legal error, the outcome would have been manifestly different, namely, service connection for arthritis of the left tarsal bone would have been assigned from February 19, 1966, the day after separation from service. 4. The earliest effective date having been assigned at law for service connection for arthritis of the left tarsal bone based upon revision of a May 17, 1966 RO rating decision due to CUE, there is no question of law or fact for the Board to decide concerning the issue of an effective date prior to October 28, 2009 for the grant of service connection for arthritis of the left tarsal bone. 5. The Veteran is not rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of service-connected disabilities for any period, and a referral to the Director of Compensation and Pension for consideration of a TDIU under 38 C.F.R. § 4.16(b) is not warranted. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, from September 8, 2016, the criteria for a disability rating of 20 percent for the service connected arthritis of the left tarsal bone have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). 2. For the rating period from October 28, 2009, the criteria for a disability rating in excess of 20 percent for the service connected arthritis of the left tarsal bone have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270, 5284 (2017). 3. The May 17, 1966 RO rating decision denying service connection for arthritis of the left tarsal bone was clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 4. The issue of an effective date prior to October 28, 2009 for the grant of service connection for arthritis of the left tarsal bone has been rendered moot by the grant of service connection for arthritis of the left tarsal bone from February 19, 1966 due to CUE, the earliest effective date available at law, leaving no question of fact or law to be decided by the Board. 38 U.S.C. §§ 7104 (a), 7105 (2012). 5. The criteria for a TDIU have not been met for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from October 1965 to February 1966. This matter came before the Board of Veterans’ Appeals (Board) on appeal from June 2014 and August 2014 rating decisions of the RO in St. Paul, Minnesota. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging CUE. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issue on appeal. Further, as the instant decision dismisses the earlier effective date question, no further discussion of VCAA duties to notify or assist is necessary as to that issue. The Board notes that in the instant decision it finds CUE in the May 17, 1966 rating decision denying service connection for arthritis of the left tarsal bone, and revises the decision to grant service connection from February 19, 1966. Following this grant, the RO will have to initially rate the period from February 19, 1966 until October 27, 2009. As such, in the instant decision the Board only has jurisdiction over the question of an increased disability rating for the service connected arthritis of the left tarsal bone from October 28, 2009 to the present. Concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice prior to the issuance of the relevant rating decisions on appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and provided the Veteran with adequate VA examinations. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14 (2017). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The Veteran’s left ankle disability has been rated under Diagnostic Code 5271, found in the Schedule of Ratings for the Musculoskeletal System. 38 C.F.R. § 4.71a. Diagnostic Code 5271 contemplates disability of the ankle manifested by limitation of motion. Under Diagnostic Code 5271, a 10 percent rating is assigned when limitation of motion is moderate, and a 20 percent rating is assigned when limitation of motion is marked. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II (2017). Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2017). Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 4.2, 4.6. 1. Rating Arthritis of the Left Tarsal Bone from September 8, 2016 During the relevant rating period on appeal, the RO assigned an initial disability rating of 20 percent for the service connected arthritis of the left tarsal bone from October 28, 2009 until September 8, 2016, at which time a staged initial rating of 10 percent was assigned. Having reviewed all the evidence of record, lay and medical, the Board finds that, for the rating period from September 8, 2016, the service connected arthritis of the left tarsal bone manifested as marked limitation of motion. Per the report from a May 2015 VA ankle examination, upon range of motion testing the Veteran’s dorsiflexion was limited to 10 of 20 degrees, and the plantar flexion was limited to only 15 of 45 degrees. Range of motion testing from a subsequent September 2016 VA ankle examination again showed dorsiflexion was limited to 10 of 20 degrees. While plantar flexion slightly improved and was only limited to 20 of 45 degrees, the Veteran reported experiencing flare ups of pain that would further limit range of motion. The Board finds such limitation of motion, especially when considered with the Veteran’s painful flare ups, constituted “marked” limitation of motion as contemplated by VA rating criteria. The Board finds that, for the rating period from September 8, 2016, the service connected arthritis of the left tarsal bone manifested as marked limitation of motion, to warrant an increased 20 percent disability rating, the maximum available rating, under Diagnostic Code 5271. Id. As discussed above, during the relevant period on appeal the Veteran lost approximately half of the motion in the left ankle due to pain, and this is even before the reported painful flare ups. As such, the Board will resolve reasonable doubt in favor of the Veteran to find that, for the rating period on appeal from September 8, 2016, the left ankle demonstrated “marked” limitation of motion, warranting a 20 percent disability rating. 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271; DeLuca. 2. Rating Arthritis of the Left Tarsal Bone from October 28, 2009 The Board has also considered whether a disability rating in excess of 20 percent was warranted at any point during the initial rating period from October 28, 2009. Having reviewed all the evidence of record, lay and medical, the Board finds that for the relevant rating period the service connected arthritis of the left tarsal bone did not manifest as ankylosis of the ankle or symptoms consistent with a severe foot injury. Here, a disability rating in excess of 20 percent would only be warranted for the service connected arthritis of the left tarsal bone if there was ankylosis of the ankle (Diagnostic Code 5270) or if the disability manifested as a severe foot injury (Diagnostic Code 5284). At the outset, the Board notes that the relevant evidence, including VA treatment records and the reports from the May 2015 and September 2016 VA ankle examinations, does not reflect that the Veteran has ankylosis of the left ankle. As such, an increased disability rating under Diagnostic Code 5270 is not warranted. An increased disability rating of 30 percent would be warranted under Diagnostic Code 5284 if the service connected arthritis of the left tarsal bone manifested as “severe” foot symptomatology. As discussed above, words such as severe are not defined in the Rating Schedule, and VA must evaluate all evidence to the end that decisions will be equitable and just. Having reviewed the evidence of record, the Board does not find that the Veteran’s left tarsal bone arthritis symptoms reach the level of “severe” as contemplated by the Rating Schedule. Per the report from a July 2010 VA ankle examination, the Veteran’s left ankle symptoms included pain, with painful flare ups, stiffness, weakness, and difficulty standing and walking after a period of one to three hours. At the time of the examination the Veteran was able to work a seven day workweek. The report from the May 2015 VA ankle examination conveys that the Veteran was experiencing painful limitation of motion in the left ankle, with the pain averaging a two to five out of ten on the pain scale daily. The pain would hinder ambulation. There was no instability in the left ankle, and no other relevant symptoms were noted by the VA examiner. The Veteran did not require the use of an assistive device. Concerning functional impairment, the VA examiner noted that the Veteran had difficulty walking up and down steps and difficulty remaining standing for extended periods of time. The Board notes that the findings in the subsequent September 2016 VA ankle examination were essentially the same as those in the May 2015 VA examination report, although with an increased frequency in painful flare ups. The Board notes that it has reviewed the Veteran’s VA treatment records and does not find any additional left tarsal bone arthritis symptoms beyond those discussed above. Having reviewed all the evidence of record, lay and medical, the Board finds that the Veteran’s arthritis of the left tarsal bone did not reflect severe symptomatology at any point during the relevant period on appeal. The evidence conveys that throughout the course of this appeal the Veteran’s left tarsal bone arthritis symptoms manifested as pain, with painful flare ups, stiffness, weakness, and difficulty standing and walking for prolonged periods. Having reviewed the Veteran’s statements concerning the severity of these symptoms, along with the other evidence of record, the Board finds that, at most, the Veteran was describing symptoms contemplated as moderately severe under Diagnostic Code 5284. Many of the Veteran’s symptoms were merely sensory in nature, and the non sensory symptoms were not so pronounced as to reach the level of “severe” as contemplated by the rating schedule. The Veteran was able to ambulate without the need for an assistive device. For these reasons, a disability rating in excess of 20 percent for the service connected arthritis of the left tarsal bone is not warranted under Diagnostic Code 5284. The evidence of record, both lay and medical, in the context of the history of this disability, reflects that for the entire increased rating period on appeal, from October 28, 2009, the service connected arthritis of the left tarsal bone did not manifest as ankylosis of the ankle or symptoms consistent with a severe foot injury. As the preponderance of the evidence is against a disability rating in excess of 20 percent for the service connected arthritis of the left tarsal bone, the increased disability rating claim must be denied as to the question of a disability rating in excess of 20 percent from October 28, 2009. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5270 and 5284. Extraschedular Referral Consideration The Board had also considered whether referral for an extraschedular rating is warranted for the service-connected arthritis of the left tarsal bone. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). However, the Board gives no deference to the Director’s adjudication and the Board is permitted to exercise jurisdiction over the question of entitlement to an extraschedular rating whether or not the Director of the Compensation and Pension Service finds an extraschedular rating warranted. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board); Cf. Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). With respect to the first prong of Thun, the Veteran’s arthritis of the left tarsal bone has manifested primarily as pain, with painful flare ups, stiffness, weakness, and difficulty conducting various activities of daily life, such as standing and walking for prolonged periods of time. As discussed above, painful limitation of motion with painful flare ups is specifically considered under the schedular rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202 (additional limitation of motion due to orthopedic factors are incorporated as part of the schedular rating criteria). Additionally, under Diagnostic Code 5271, in evaluating the Veteran’s limitation of motion of the ankle, VA is to consider whether the limitation is moderate or marked, rather than on actual degrees lost. As such, in determining whether limitation is moderate or marked, the evaluator should consider all factors that may limit motion; therefore, all the symptoms and functional impairment are contemplated by the schedular rating criteria. Further, the functional limitations imposed by the Veteran’s arthritis of the left tarsal bone, including difficulty standing and walking, that involve use of the ankle are primarily the result of the ankle pain, including flare ups, caused by engaging in these activities; therefore, as recognized in DeLuca, the effects of the Veteran’s ankle pain and associated limitations on occupational and daily life are specifically contemplated by the schedular criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59. The schedule is intended to compensate for average impairments in earning capacity resulting from service connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the functional limitations and the effects on daily life. Here, the problems reported by the Veteran are specifically contemplated by the schedular rating criteria discussed above. In the absence of exceptional factors associated with the arthritis of the left tarsal bone, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The issue of entitlement to a TDIU is addressed below. 3. CUE in September 8, 2016 Rating Decision Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of “error.” It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) “[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,” (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). In the present case, the Veteran alleges CUE in a prior May 17, 1966 rating decision that denied service connection for arthritis of the left tarsal bone. The pertinent laws and regulations at the time of this decision were similar, if not essentially the same, as they are now. First, 38 C.F.R. § 3.303(a) provided then, as now, that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(a) (1966). Second, under 38 U.S.C. § 5107 (1964), a veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Third, 38 C.F.R. § 3.102 (1966), both then and now, states that when a reasonable doubt arises due to an approximate balance of positive and negative evidence, such doubt shall be resolved in favor of a veteran. Further, the regulation also stated that every veteran was in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, or enrollment, or where clear and unmistakable evidence (obvious or manifest) demonstrated that the injury or disease existed before acceptance and was not aggravated by such service. 38 U.S.C. § 311 (1964). A preexisting injury was considered to have been aggravated by active service where there was an increase in disability during such service, unless there was a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 353 (1982) (now 38 U.S.C. § 1153). The applicable statute, 38 U.S.C. § 311 (now 38 U.S.C. § 1111), was implemented by 38 C.F.R. § 3.304(b) (1986), which provided that: The veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. The United States Court of Appeals for the Federal Circuit (Federal Circuit) clarified in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) that the presumption of soundness under 38 U.S.C. § 1111 is rebutted only if there is both (1) clear and unmistakable evidence that the claimed condition existed prior to service and (2) clear and unmistakable evidence that any preexisting conditions were not aggravated by service. While the decision in Wagner did not exist when the May 17, 1966 rating decision was issued, the Wagner decision, as explained by the Federal Circuit, was a statement of what the statute creating the presumption of soundness has meant since its enactment in 1958. See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction”). The Federal Circuit has held that its interpretation of section 1111 in the Wagner opinion was retroactive in that the interpretation of a statute explains “what the statute has meant since the date of enactment.” Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011). As a result, the Federal Circuit found that a 1986 Board decision which failed to apply the clear and unmistakable evidence standard to the issue of aggravation was not in accordance with the law. See id. Simply stated, as found by the Federal Circuit, the Wagner case was a clarification of what the statute had always meant. In sum, when no preexisting condition is noted upon entry into service, a veteran is presumed to have been found sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. If that burden is met, then the veteran is not entitled to service connection benefits. However, if the Government fails to rebut the presumption of soundness, the claim is one for direct service connection. Wagner, 370 F.3d 1089. At the outset, the Board notes that the May 17, 1966, rating decision became final, as the Veteran did not file a timely notice of disagreement (NOD) to the rating decision and no new and material evidence was received during the one year appeal period following that decision. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). Next, the Board finds the allegations of CUE made by the Veteran and representative are adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). Specifically, in a November 2011 brief, the Veteran’s representative argued that in May 1966 the RO misapplied the presumption of soundness and, had it not done so, it is undebatable that service connection for arthritis of the left tarsal bone would have been granted at that time. The Board agrees. Review of the service treatment records reflects that the service entrance examination in October 1965 was normal, showing no diagnosis of a foot, ankle, or leg disorder, which means the presumption of soundness was implicated. A February 1966 service treatment record reported that the Veteran sought treatment for pain in the left foot. A subsequent February 1966 service treatment record conveys that, upon examination, the Veteran was diagnosed with arthritis due to direct trauma to the left tarsal bone. This diagnosis led to the Veteran’s early discharge from service. In a March 1966 statement in support of claim, the Veteran advanced having a preexisting left ankle disorder, but also stated that during service walking and drilling led to an increase in left foot pain symptoms. Based on the above, whether or not there was clear and unmistakable evidence that the claimed condition existed prior to service, the evidence before the RO at the time of the May 17, 1966 RO rating decision shows that it was not clear and unmistakable that preexisting arthritis of the left tarsal bone was not aggravated by service. Wagner, 370 F.3d 1089. “Clear and unmistakable evidence” is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Cotant v. Principi, 17, Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). In this regard, the Board observes that the service treatment records showed some evidence of aggravation or worsening of the arthritis of the left tarsal bone during service, as the Veteran was asymptomatic at service entrance and subsequently sought treatment for foot pain. In a statement in support of claim, the Veteran attributed the worsening pain to in service physical training. For the above reasons, the Board finds that it cannot be legally said that a finding of no aggravation could have been undebatable in May 1966. Cotant, 17 Vet. App. at 131. At the very least, the evidence brings into question whether there was aggravation of preexisting arthritis of the left tarsal bone during service. In this regard, the Board now turns to whether the result would have been manifestly different but for the error. On this issue, because there was no clear and unmistakable evidence in May 1966 that arthritis of the left tarsal bone both preexisted service and was not aggravated thereby, the presumption of soundness was not rebutted, and the claim should have then been considered on a direct basis. See 38 U.S.C. § 311; Wagner, 370 F.3d at 1094 96. In this regard, if the presumption of soundness has not been rebutted, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established. See Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2013) (citing Horn v. Shinseki, 25 Vet. App. 231, 236 (2012)). For service connection, a claimant still must establish a current disability that is related to the in-service injury or disease. Gilbert, 26 Vet. App. at 52. An unrebutted presumption of soundness does not necessarily lead to service connection for the disease or injury because it still must be shown by the claimant that there is a nexus between the current disability and service. Id. at 52. The Board finds that, without the error of law in the May 17, 1966 RO rating decision, the presumption of soundness would not have been rebutted. Moreover, the claim for service connection for arthritis of the left tarsal bone would have been granted on a direct basis. This conclusion is undebatable, as reasonable minds could not differ on it. Per the above discussion, during service the Veteran was diagnosed with trauma related arthritis of the left tarsal bone. As the presumption of soundness was not rebutted, that trauma that caused the arthritis is deemed to have occurred in service. Gilbert, 26 Vet. App. at 53. The evidence of record reflects that the RO committed legal error in the May 17, 1966 rating decision when it failed to find that the presumption of soundness had not been rebutted. It is undebatable that, had the RO not made this legal error, the outcome of the rating decision would have been manifestly different, as service connection for arthritis of the left tarsal bone would have been granted. Specifically, the medical evidence of record at that time showed that the Veteran was diagnosed with trauma related arthritis of the left tarsal bone during service. The trauma, which caused the arthritis, is deemed to have occurred during service. The Veteran immediately applied for service connection for arthritis of the left tarsal bone upon separation from service in February 1966. Had the RO properly applied the presumption of soundness and decided the issue of service connection for arthritis of the left tarsal bone on a direct basis, reasonable doubt would have been resolved in favor of the Veteran to find service connection for arthritis of the left tarsal bone warranted on a direct basis. For these reasons, the Board concludes that the RO committed clear and unmistakable error in the May 17, 1966 rating decision denying service connection for arthritis of the left tarsal bone. As the Veteran’s February 1966 claim for service connection for arthritis of the left tarsal bone was received within one year of separation from service, the May 17, 1966 RO rating decision will be revised to reflect a grant of service connection for arthritis of the left tarsal bone, effective February 19, 1966, the day after separation from service. 38 C.F.R. § 3.400 (2017). 4. Effective Date Prior to October 28, 2009 for Service Connection for Arthritis of the Left Tarsal Bone The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. As discussed above, the Board finds CUE in a May 17, 1966 RO rating decision denying service connection for arthritis of the left tarsal bone, and revises the decision to reflect a grant of service connection for arthritis of the left tarsal bone from February 19, 1966, which is the day after the Veteran’s separation from service. As this is the earliest effective date available at law, there is no question of law or fact for the Board to decide concerning the issue of an effective date prior to October 28, 2009 for the grant of service connection for arthritis of the left tarsal bone; therefore, the appeal for an effective date prior to October 28, 2009 for the grant of service connection for arthritis of the left tarsal bone must be dismissed. 5. Entitlement to a TDIU Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a),(b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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 shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non service connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran 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, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the Court 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 a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2017). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). After a review of all the evidence, lay and medical, the Board finds that a TDIU is not warranted for any period. Initially, the Board notes that the Veteran’s disabilities do not meet the regulatory schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration of TDIU. Throughout the course of this appeal, the Veteran has been service connected for arthritis of the left tarsal bone (20 percent disabling), and scarring associated with the left tarsal bone disability (10 percent disabling), for a combined disability rating of 30 percent. Next, having considered all the evidence of record, lay and medical, the Board finds that referral under 38 C.F.R. § 4.16(b) to the VA Compensation and Pension Director for extraschedular consideration is not warranted. VA received a VA Form 21 8940, Veteran’s Application for Increased Compensation Based on Unemployability, in June 2015. Per the form, after service the Veteran became a baker by trade. Not only that, but the Veteran owned his own baking company from April 1994 to May 2011. The Veteran submitted a statement in support of claim in July 2015. Per the statement, after selling the bakery business the Veteran returned to work as a baker. The Veteran advanced quitting the last non managerial baking job in November 2014 due to concerns that the service connected arthritis of the left tarsal bone would eventually cause a kitchen falling accident that could result in a staff member becoming injured. Relevant to the Board’s analysis is the Veteran’s statements concerning his ability to work when he was the owner of a bakery. Per the Veteran, while his employees were responsible for all physical labor, the Veteran worked 60 to 72 hours per week on a variety of non physical employment related tasks, including ordering supplies, managing the bakery’s stock, and training and overseeing the employee’s work. The Veteran did not advance, and the record does not support, that the service connected arthritis of the left tarsal bone hindered the Veteran’s non physical managerial work. (Continued on the next page)   The various VA ankle examinations during the course of this appeal support the Board’s findings. Per the report from the July 2010 VA ankle examination, the Veteran was able to work seven days a week with the assistance of staff. Concerning the effects on usual daily activities, such effects were mostly mild or moderate, with only sports being prevented. The report from the May 2015 VA ankle examination noted that the pain from standing for extended periods of time would hinder the ability to work as a baker; however, there was no indication that the Veteran could not perform work that did not require standing for extended periods of time. Likewise, in the September 2016 VA ankle examination, the VA examiner noted that the Veteran’s employability was impacted by difficulty walking due to pain, but, again, there was no indication that the Veteran could not perform work that did not require a significant physical component. Having reviewed all the evidence of record, both lay and medical, the Board finds that the weight of the lay and medical evidence demonstrates that the criteria for a TDIU have not been met or more nearly approximated for any period. The Board is sympathetic to the Veteran’s argument that he can no longer work as a baker due to the service connected arthritis of the left tarsal bone; however, by the Veteran’s own admission, for approximately 17 years, while experiencing painful left ankle symptoms similar to those currently manifesting, the Veteran was able to work 60 to 72 hours per week on a variety of non physical employment related tasks as a personal business owner. There is no indication from the record that the non physical skills and abilities demonstrated by the Veteran as a business owner would not transfer to any one of a number of available non physical jobs. For this reason, the Board finds that the weight of the evidence is against a TDIU at any point during the relevant period on appeal. As the preponderance of the evidence is against entitlement to a TDIU, the benefit of the doubt doctrine is not for application, and a TDIU must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel