Citation Nr: 18158963 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-55 786 DATE: December 19, 2018 ORDER The application to reopen the previously denied service connection claim for hysterectomy is granted. Entitlement to service connection for excessive uterine bleeding, also claimed as a hysterectomy, is denied. Entitlement to a rating in excess of 50 percent for headaches, migraine type, is denied. Entitlement to a rating in excess of 20 percent for residuals, status post right ankle fracture is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted from July 28, 2016, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. In a March 2000 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for hysterectomy. The Veteran did not appeal and new and material evidence was not received within the one-year appeal period. 2. Evidence received since the March 2000 rating decision related to the basis for the prior denial for hysterectomy and raised a reasonable possibility of substantiating the claim. 3. Excessive uterine bleeding did not have its onset in active service, and is not otherwise related to service, to include a fall injury associated with service-connected right ankle disability or in-service medical treatment. 4. The Veteran's migraine headaches cause very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, and the symptoms are contemplated by the applicable rating criteria. 5. The Veteran's symptoms of the right ankle have manifested by pain and marked limitation of motion with no evidence of ankylosis of the right ankle. 6. From July 28, 2016, the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities preclude her from being able to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The RO's March 2000 rating decision that denied the claim of service connection for hysterectomy is final. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.200, 20.302. 2. The evidence received since the March 2000 rating decision is new and material and sufficient to reopen the claim of service connection for excessive uterine bleeding associated with hysterectomy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for excessive uterine bleeding associated with hysterectomy have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for a rating higher than the maximum schedular rating of 50 percent for migraine headaches are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.10, 4.20, 4.124, Diagnostic Code (DC) 8100. 5. The criteria for a rating higher than 20 percent for residuals, status post right ankle fracture are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.10, 4.71a, DCs 5262, 5270, 5271. 6. With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU from July 28, 2016 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision. In February 2018, the Veteran appointed the Florida Department of Veterans Affairs as her representative. The Board recognizes this change in representation. For background purposes, VA previously denied service connection for a hysterectomy in a final March 2000 rating decision. In the October 2010 claim, the Veteran describes her claimed disability as a hysterectomy and dysfunctional uterine bleeding. The December 2011 rating decision denied the petition to reopen the hysterectomy claim and also adjudicated a separate service connection claim for dysfunctional uterine bleeding that is the subject of the appeal. In order to fulfill its obligation of de novo review, the Board must consider the question of whether the current dysfunctional uterine bleeding claim is subject to any prior rating decision and if so, whether new and material evidence has been received. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In this case, the dysfunctional uterine bleeding contemplates substantially similar symptoms to the previously denied hysterectomy claim. It does not encompass a separate diagnosis since it in fact precipitated the hysterectomy. See September 1999 VA treatment records. Therefore, the Board finds it to be subject to the prior March 2000 rating decision denying service connection for a hysterectomy. Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). Since last statement of the case (SOC) in October 2016, additional VA treatment records, Social Security Administration (SSA) records and updated VA examination reports have been received. The updated records are generally either cumulative of previously considered evidence or not relevant to the claims decided in the instant decision. 38 C.F.R. § 20.1304(c). Then, the Veteran currently has maximum schedular ratings for headaches and right ankle motion loss. The instant decision is partially favorable since it includes a TDIU award. For these reasons, the Veteran is not prejudiced by consideration of the newly received evidence. I. Duty to notify and assist As a preliminary matter, the Board finds that VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C. §§ 5100 , 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102 , 3.159, 3.326(a). The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The record reflects that the RO provided the Veteran with the requisite notice in February 2011, prior to the initial rating decision. Therefore, the Board finds that VA's duty to notify the Veteran has been satisfied. For the duty to assist, VA satisfied it by obtaining identified and available evidence and affording the Veteran appropriate VA examinations. As discussed below, the examinations and hysterectomy medical opinion are adequate to decide these claims. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issues herein decided has been obtained in accordance with 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c). In these circumstances, a remand for further development would not raise any reasonable possibility of substantiating entitlement to additional benefits. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). II. Application to reopen previously denied hysterectomy claim Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). In this case, the RO initially denied service connection for a hysterectomy in a March 2000 rating decision. The Veteran did not appeal this decision and new and material evidence was not received within the remaining appeals period. In the March 2000 rating decision, the RO considered the Veteran’s reports that a fall caused by her service-connected right ankle disability ultimately resulted in her having a hysterectomy. It considered VA treatment records from June 1999 to December 1999 and a March 1999 statement concerning the Veteran’s theory of entitlement. The medical records confirmed that the Veteran underwent a hysterectomy in October 1999 and reported a long history of uterine bleeding. The RO did not find any of the evidence to substantiate the occurrence of a fall due to the service-connected right ankle disability. Since the March 2000 rating decision, the Veteran provided additional statements. She attributed her uterine bleeding disorder to a 1983 military fall in which she was treated for a broken right ankle. See October 2010, February 2015 Veteran statements. She reported she had excess bleeding for years after an active duty fall. She was treated unsuccessfully with several medications. A negative VA medical opinion was obtained September 2016. In this case, the Veteran is competent to report her recollection of uterine bleeding symptoms and temporal onset. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Her reports are presumed credible for reopening purposes. Justus, 3 Vet. App. at 513. Her current assertions suggest continuous symptoms beginning with a 1983 military fall that resulted in the hysterectomy, as opposed to the previously considered unspecified fall due to the service-connected right ankle disability. In sum, the additional reports from the Veteran relate to the basis for the prior denial to suggest the symptoms started coincident to a military fall. The additional evidence raises a reasonable possibility of substantiating the claim. The Board thus considers it to be new and material. Reopening of the service connection claim for hysterectomy is therefore warranted. III. Service Connection for dysfunctional uterine bleeding/ hysterectomy Initially, the Board notes that the RO Reopened the claim and denied it on the merits. Thus, there is no prejudice to the Veteran in the Board addressing the merits of the claim as well. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after 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). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board’s determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service treatment records (STRs) from August 1983 showed that the Veteran fell down a flight of stairs and broke her right ankle. She received operative treatment. In March 1984, she was re-hospitalized for intensive physical therapy for her right ankle. May 1984 gynecology clinic notes did not include any abnormal findings. October 1996 VA treatment records showed that the Veteran had been experienced increased uterine bleeding over the past four months. September 1999 VA treatment records noted a history of increase uterine bleeding since approximately 1995. The clinician recommended a hysterectomy. October 1999 VA treatment confirmed that the Veteran had a total hysterectomy. In her October 2010 claim, the Veteran reported that she was forced to undergo a hysterectomy while in service and it was a direct result of the 1983 accident where she broke her right ankle and developed migraines. She reported having dysfunctional uterine bleeding since this accident and it was caused by trauma to her pelvic area when she fell down the stairs. In November 2010, the Veteran submitted a medical article on dysfunctional uterine bleeding. It listed trauma to the affected area, among several possible causes. In June 2011, the Veteran reported having dysfunctional uterine bleeding due to a military fall injury. In February 2015, the Veteran reported that she fell down a flight of stair in service and was treated for a broken ankle. In addition, she started experiencing migraines and uterine bleeding. She reported having excess uterine bleeding for years while on active duty. Her doctors kept changing medications to manage it and she ultimately had to have a total hysterectomy. In September 2016, the Veteran was afforded a VA gynecological examination. The examiner diagnosed status post total abdominal hysterectomy. The Veteran reported excessive bleeding began after a military fall. The examiner reported that a complete blood count (CBC) did not show any significant findings and primary care treatment as needed was appropriate. The VA examiner furnished a negative medical opinion from her review of the record. She stated that there was no medical evidence to connect the right ankle injury or an allergic reaction associated with right hip treatment to the post-service hysterectomy. She cited the absence of abdominal injury during the fall and absence of medical studies connecting allergic reaction from the right hip medications to a total hysterectomy. The Veteran contends service connection for uterine bleeding resulting in a hysterectomy is warranted. The Board does not doubt the sincerity of the Veteran in her recollections of symptoms and medical history. However, as explained below, the preponderance of the evidence weighs against a nexus, and the claim must therefore be denied. For the following reasons, the evidence weighs against continuous symptoms beginning in service. The Veteran is competent to report readily observable symptoms such as uterine bleeding. Jandreau, 492 F.3d at 1376, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Her reports of uterine bleeding starting in service have been considered. However, the Board finds the October 1996 and September 1999 VA treatment records dating symptoms to approximately 1995 or 1996 based on the Veteran’s statements to health care providers for treatment purposes to be of greater probative weight than her later statements made during the course of an appeal from the denial of compensation benefits. Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (“[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board’s reasons.”)); See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). To the extent the Veteran asserts a nexus to service or service-connected right ankle injury for post-service dysfunctional uterine bleeding, her reports are not competent. These issues involve complex medical questions beyond an immediately observable cause-and-effect relationship that is within the competency of lay reporters. Jandreau, 492 F.3d at 1376, n. 4. Due to the Veteran's status as a lay witness, the Veteran’s statements indicating a nexus between post-service dysfunctional uterine bleeding and a military fall injury, allergic reaction or right ankle disability are not competent. Review of the medical records and September 2016 VA medical opinion does not show a nexus or otherwise suggest the hysterectomy or dysfunctional uterine bleeding is related to service. The September 2016 VA examiner reviewed the entire record, including the Veteran's reports, and determined a nexus was not found. She cited the absence of abdomen trauma in STRs and post-service medical records. While an examiner’s reliance on the absence of contemporaneous medical evidence as the sole basis for an opinion is inappropriate, this is not such a case. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). In this case, the Veteran has a well-documented medical history following the August 1983 fall and it did not include reports of abdominal injury where such a report would expect to be noted. See AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (silence within records is pertinent evidence when records would typically document event in dispute); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (silence in medical records may be relevant evidence that symptoms were not present if the record would normally have recorded such symptoms). The examiner explained that there were no medical studies suggesting a nexus to the medication used in a 1984 right hip injection. Thus, she explained the reasons for her conclusion based on an accurate characterization of the evidence of record. The opinion is therefore entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, there is no contrary opinion in the evidence of record and, as noted, the Veteran is not competent to opine as to a nexus for post-service dysfunctional uterine bleeding. Thus, the weight of the evidence is against a nexus between the dysfunctional uterine bleeding resulting in the October 1999 hysterectomy and the Veteran's military service, to include a fall injury or allergic reaction to right hip antiinflammatory treatment. Lastly, the Board notes the Veteran’s reports allude to falls caused by her service-connected right ankle disability, other than the initial fall injury in August 1983. The reports concerning these falls are vague. She does not detail any abdominal injury or particular medical treatment associated with these falls. Given the vague nature as to the time, severity, and specific injury from these reported falls, the Board finds further consideration as to this theory of entitlement is not warranted. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (“Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory”). For the foregoing reasons, the preponderance of the evidence is against this claim. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for service connection for dysfunctional uterine bleeding associated with a hysterectomy must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. IV. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Headaches, migraine type The Veteran seeks an increased rating for migraine headaches. Her migraine headaches are rated 50 percent disabling under DC 8100. 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, the maximum schedular rating of 50 percent is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The Veteran's statements and VA examination reports reflect that she has severe headaches that occur more than once a month. It caused her to frequently miss work and ultimately leave her job in July 2016. See, e.g., VA examination reports from April 2011 and October 2013; October 2016 employer report. VA treatment records suggest that Botox treatment was partially effective at alleviating her headache symptoms. See September 2016 VA treatment records. However, January 2018 private medical records indicated that the improvement did not last. As the Veteran is in receipt of the maximum schedular rating for her migraine headaches and this disability is specifically listed in VA’s Rating Schedule, further discussion of whether a higher schedular rating is warranted is unnecessary. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy"). As to whether an extraschedular rating is warranted under 38 C.F.R. § 3.321(b)(1), the criteria for rating headaches are broad enough to encompass all of the Veteran's symptoms. The criteria for headaches include the nature and duration of the "attacks" that would encompass all of the symptoms experienced during such attacks, and their effect on economic adaptability, which would encompass a broad range of effects of these symptoms, to include those described by the Veteran throughout the appeals period. Cf. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). As the Veteran has been assigned the maximum schedular rating for migraine headaches for the entirety of the appeal period, and an extraschedular rating is not warranted, an increased rating in excess of 50 percent must be denied. As the preponderance of the evidence is against an increased rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. B. Right ankle fracture In this case, Veteran is currently assigned a 20 percent rating for service-connected residuals of a right ankle fracture under DC 5271. 38 C.F.R. § 4.71a, DC 5271. Twenty percent is the maximum disability rating under DC 5271. Id. Schedular ratings in excess of 20 percent for the ankle are limited. DC 5270 requires the presence of ankylosis. By definition, ankylosis contemplates a total absence of joint mobility. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," Stedman's Medical Dictionary 87 (25th ed. 1990)). . DC 5262 (impairment of the tibia and fibula) also contemplates ankle disability. 38 C.F.R. § 4.71a, DC 5262. In relevant part, DC 5262 provides a 30 percent rating for malunion with marked knee or ankle disability. A 40 percent rating is assigned for nonunion of the tibia and fibula with loose motion and requiring a brace. Malunion is "union of the fragments of a fractured bone in a faulty position." Dorland's Illustrated Medical Dictionary 1115 (31st ed. 2007). Nonunion is the "failure of the ends of a fractured bone to unite." Id. at 1309. Disability from malunion of the tibia shaft is produced mainly by rotational deformity, lateral and posterior bowing, and usually some degree of shortening. See Canale & Beaty, Campbell's Operative Orthopaedics 2931 (12th ed. 2012). Moving to the evidence, in her November 2010 claim for increase, the Veteran reported that her right ankle pain had increased and she had developed arthritis. She reported having an altered gait. March 2011 VA treatment records showed that the Veteran complained about increased right ankle pain and requested a new ankle brace. Clinical evaluation did not reveal any crepitus or swelling. Range of motion (ROM) was intact. The clinician assessed right ankle pain and placed an orthopedic referral. In April 2011, the Veteran had a VA ankle examination. She reported that her right ankle had become weaker and rolled easier. It caused her to fall. She had intermittent right ankle pain with walking and sharp shooting pain. She treated it with medication, bracing and limited activity. Right ankle joint symptoms included giving way, instability, pain, stiffness, weakness, and incoordination. Dislocation, subluxation, and locking were not reported. Repeated effusion and swelling was indicated. The Veteran reported flare-ups of a moderate severity every three to four months that lasted one to two days. They were precipitated by increased activity, cold weather and rain. They were relieved by rest, elevation, brace, medication and topical medication. The overall impairment was 50 percent of baseline. The Veteran was able to stand for 15 to 30 minutes. She could not walk further than a mile. She frequently used her ankle brace. Evidence of abnormal weight-bearing was indicated by callus formation of the lateral aspect right big toe. No abnormal shoe wear or bone deformity was noted. The examiner summarized the general findings as edema and tenderness over lateral malleolus. No ankle instability, tendon abnormality or angulation was found. Ankle ROM was dorsiflexion to 15 degrees with pain throughout. Plantar flexion was to 10 degrees with pain throughout. No ankylosis was found. A well healed scar on lateral aspect of the right ankle was found. Right ankle X-rays confirmed degenerative joint disease (DJD). The Veteran reported missing two days of work due to her right ankle disability. The examiner diagnosed residuals status post right ankle fracture. It had significant occupational effects from decreased mobility, problems with lifting and carrying and pain. June 2011 VA podiatry clinic records showed that the Veteran continued to have intermittent pain in her right ankle. She described “rolling” it while walking. Clinical evaluation showed pain to palpation on the anteromedial ankle joints. A small amount of pain noted to the anterolateral ankle. ROM was decreased with some medial pain. No pain was observed with dorsiflexion or plantarflexion of the hallux or deep posterior ankle joint. Subtalar joint (STJ) motion was increased with inversion, but no subluxation or dislocation of the peroneal tendons was found. No other deformities were observed. Magnetic resonance imaging (MRI) study showed irregularity for medial talar dome, medial aspect, and effusion surround the flexor hallucis longus and tibialis posterior tendons. The clinician assessed ligamentous laxity and medial talar dome osteochondral defects (OCD). He discussed treatment options. The Veteran indicated she would like to continue conservative care. A right ankle brace was ordered. July 2011 VA podiatry clinic showed that the Veteran recently received the brace and did not have any problems. Clinical findings were substantially similar to those given the prior month. November 2014 VA podiatry clinic records included an evaluation for new shoes. The Veteran reported having minor aches along the side of the right ankle, but overall felt good. Clinical evaluation showed minimal pain and increased inversion. No edema or ecchymosis was observed. The clinician assessed right ankle pain secondary to instability. New shoes were ordered and topical medication was given for minor ache/pain on the side of the ankle. In December 2016, July 2017 and June 2018, the Veteran had additional VA right ankle examinations. Although the June 2018 report included subjective reports of worsening disability, the clinical findings were substantially similar to those recorded in June 2011. The Board notes that the December 2016 examiner diagnosed right tibia and fibula fracture and the July 2017 VA examiner diagnosed lateral collateral ligament sprain. Upon review, the Veteran contends a rating in excess of 20 percent for right ankle disability is warranted. Again, the potential ratings in excess of 20 percent for ankle disability are limited. 38 C.F.R. § 4.71a, DCs 5262, 5270, 5271. The Board notes functional impairment is not for consideration since the Veteran currently has the maximum schedular rating based on limitation of motion. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. §§ 4.40, 4.45. Additionally, because range of motion findings cannot result in a higher rating, the holding in Correia v. McDonald, 28 Vet. App. 158 (2016), that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply, is not for application. A rating under DC 5270 contemplates ankle ankylosis. 38 C.F.R. § 4.71a, DC 5270. The record does not show that the Veteran has ankylosis in her right ankle, and DC 5270 is not for application. Dinsay, 9 Vet. App. at 81; Id. Alternatively, DC 5262 contemplates tibia and fibula impairment and provides a 30 percent rating for tibia and fibula malunion with marked knee or ankle disability. 38 C.F.R. § 4.71a, DC 5262. In this case, the right ankle fracture residuals consist of pain and limitation of motion that is clearly contemplated in DC 5271. 38 C.F.R. § 4.71a, DC 5271. There does not appear to a history of osteomyelitis or improper immobilization associated with the military right ankle fracture that manifests as a current residual. Notably, the comments from the MRI and radiographic right ankle imaging studies above do not suggest notable malunion from the fracture. Given this background, the Board declines to assign a rating in excess of 20 percent under DC 5262. Id.; see also Copeland, 27 Vet. App. at 337. For the foregoing reasons, a rating higher than 20 percent for residuals, right ankle fracture is not warranted. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Neither the Veteran, nor her representative, have raised any other issues, nor have any other issues been reasonably raised by the record for this disability. See Doucette, 28 Vet. App. 396-70 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). V. Entitlement to a TDIU TDIU is warranted where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. "A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment." Id. The ultimate question, however, 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 Veteran was gainfully employed until July 28, 2016. See October 2016 employer report. Prior to July 28, 2016, the Veteran does not meet the basic eligibility criteria for TDIU because of her gainful employment and TDIU cannot be considered. 38 C.F.R. § 4.16; see October 2016 employer reports and Veteran TDIU application. From July 28, 2016, the Veteran is service-connected for headaches, 50 percent disabling, right ankle disability, 20 percent disabling, left hip bursitis, 10 percent disabling and additional non-compensable disabilities. Then, from February 15, 2018, she is additionally service connected for somatic disorder rated as 70 percent disabling. Her combined rating from July 28, 2016 meets the schedular rating criteria as she has one disability rated greater than 40 percent disabling with additional disability resulting in a 70 percent combined rating. 38 C.F.R. § 4.16(a). The Veteran has a high school education and occupational experience in administrative support. Her last job in administration support lasted ten years. See October 2016 VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability. The evidence prior to July 28, 2016 include multiple reports from the Veteran and others on her behalf that service-connected headaches substantially interfered with her job. See October 2013 Veteran, parents and neighbor statements; December 2013 NOD. October 2016 statement from the Veteran’s supervisor stated that she left work on July 28, 2016 due to personal or family reasons. The October 2016 TDIU application reflected that the Veteran claimed service-connected migraines precluded gainful employment. She stated that due to the frequency of migraines and associated medical treatment she frequently missed work. Her employer could not find her another position. The December 2016 VA headache examination report detailed the functional impact of headaches as decreased concentration during an attack and noted that manual labor may precipitated an attack. However, the VA examiner did not believe the Veteran’s headaches would preclude sedentary work. He noted the Veteran could work in position with a part time or flexible schedule and most employers offered ergonomic accommodations. He provided a supporting business magazine article. In November 2017, Social Security Administration (SSA) records included another report from the Veteran’s mother. She stated that the Veteran required frequent bed rest for migraine attacks. January 2018 private medical records from Dr. M indicated that VA treatment for chronic migraines did not provide significant improvement. The clinician noted that the Veteran reported that she could not work. The Veteran continued to experience incapacitating headaches. In May 2018, Dr. M submitted a letter in support of this claim. She stated that she treated the Veteran for multiple service-connected disabilities. She opined that the Veteran was unemployable due to her service-connected disabilities. The June 2018 VA examination headache report identified occupational impact as increased absenteeism. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to her service-connected disabilities, and entitlement to a TDIU is warranted. The Board notes that the Veteran is not service-connected for a somatic disorder until February 2018 and initially claimed unemployability due to headaches. The above evidence reflects that the Veteran has frequent severe headaches that would interfere with her usual work in office administration. The Veteran has consistently reported frequent disabling headaches and sought accordant medical treatment and her reports are competent and credible. The only report directly weighing against her assertion of unemployability is from the December 2016 VA headache examiner. However, the Board does not find the December 2016 VA examiner’s report particularly convincing. The Veteran does not appear well qualified for many of the listed occupations. Then, it is reasonable to infer that the vast majority of general office administration jobs for which the Veteran is otherwise qualified require regular office attendance. The examiner does not provide reasons to reject the Veteran’s description of her headaches that interfere with regular office attendance. In any event, the “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). For the foregoing reasons, the evidence is thus at least evenly balanced as to whether the Veteran’s service-connected disabilities, most significantly headaches, preclude her from securing or following a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU from July 28, 2016 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel