Citation Nr: 20022804 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 13-09 485A DATE: April 2, 2020 ORDER An initial rating of 10 percent, but no higher, for right hand strain is granted. Prior to June 13, 2016, entitlement to an initial rating of 40 percent, but no higher, for a left ankle sprain with tarsal tunnel syndrome, status post-surgery is granted. From June 13, 2016, entitlement to an initial rating of 20 percent, but no higher, for a left ankle sprain with tarsal tunnel syndrome, status post-surgery is granted. Entitlement to an initial compensable rating for hemorrhoids is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, throughout the appeal period, the Veteran’s service-connected right hand strain was manifested by complaints of pain and locking resulting in functional impairment. 2. Resolving reasonable doubt in the Veteran’s favor, prior to June 13, 2016, the Veteran’s service-connected left ankle sprain with tarsal tunnel syndrome, status post-surgery, was manifested with ankylosis with dorsiflexion at more than 10 degrees. 3. Resolving reasonable doubt in the Veteran’s favor, from June 13, 2016, the Veteran’s service-connected left ankle sprain with tarsal tunnel syndrome, status post-surgery, was manifested by no worse than marked limited motion of the ankle. 4. The evidence of record does not support a finding that the Veteran’s hemorrhoids were large or thrombotic, irreducible, with excessive redundant tissue, or evidencing frequent recurrences; rather they were described as mild or moderate. 5. The Veteran’s service-connected disabilities do not render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for an initial rating of 10 percent, but no higher, for right hand strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5229. 2. Resolving reasonable doubt in the Veteran’s favor, for the period prior to June 13, 2016, the criteria for an initial rating of 40 percent, but no higher, for a left ankle sprain with tarsal tunnel syndrome, status post-surgery, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5270. 3. Resolving reasonable doubt in the Veteran’s favor, for the period from June 13, 2016, the criteria for an initial rating of 20 percent, but no higher, for a left ankle sprain with tarsal tunnel syndrome, status post-surgery, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5271. 4. The criteria for an initial compensable rating for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7336. 5. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to May 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified at a hearing before the undersigned in July 2015. The transcript is of record. These matters were previously remanded by the Board in January 2016 for additional development. The Board also notes that although a subsequent July 2016 supplemental statement of the case and December 2019 appellate brief addressed the issue of left foot increased rating, the Veteran withdrew the appeal of this particular issue during the July 2015 Board hearing and as such, was subsequently dismissed in the January 2016 Board decision. As such, the issue regarding an initial rating in excess of 30 percent for fasciotomy, left foot with plantar fasciitis, is not currently before the Board for consideration. The Board observes that additional VA treatment records were received following the last adjudication by the RO in the July 2016 supplemental statement of the case. The Board sought a waiver of initial consideration by the RO of this evidence. In February 2020, a waiver of initial consideration by the RO was received. Accordingly, the Board will proceed with adjudication of the issues on appeal. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings,” regardless of whether a case involves an initial rating. E.g., Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. 1. Entitlement to an initial compensable rating for right hand strain. The Veteran is in receipt of an initial noncompensable rating for right hand strain disability pursuant to Diagnostic Code 5229. He contends that a higher rating is warranted. Under 38 C.F.R. § 4.71a, DC 5228 a noncompensable evaluation is warranted for limitation of motion of a thumb of the major or minor extremity when there is a gap of less than one (1) inch (2.5 cms.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent rating is warranted for limitation of motion of a thumb of the major or minor extremity when there is a gap of one (1) to two (2) inches (2.5 to 5.1 cms.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent rating is warranted for limitation of motion of a thumb of the major or minor extremity when there is a gap of more than two (2) inches (5.1 cms.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Under DC 5229 a noncompensable evaluation is warranted for a limitation of motion of the index or long finger with a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. Id. A 10 percent evaluation is warranted for a limitation of motion of the index or long finger with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. Id. A zero (0) percent evaluation is granted for any limitation of motion in the ring or little finger. 38 C.F.R. § 4.714a, DC 5230. Also, a 10 percent evaluation is granted for ankylosis that is shown to be favorable or unfavorable for the index and longer fingers, while a 0 percent evaluation is granted for ankylosis that is shown to be favorable or unfavorable for the ring and little fingers. 38 C.F.R. § 4.71a, DC 5225 - 5227. Higher compensable evaluations can be granted for multiple favorable or unfavorable ankylosed digits when combined. 38 C.F.R. § 4.71a, DCs 5216 - 5223. Factual Background In a March 2011 VA examination, the examiner noted the Veteran was right-handed. See October 2011 C&P Exam. On examination, the metacarpophalangeal joint was 0 to 90 degrees of flexion, the distal (terminal) interphalangeal joint was 0 to 70 or 80 degrees of flexion. The examiner noted there was no pain on motion noted. Regarding measurement of the gap in inches, the tip of the thumb and the fingers were able to touch, and the tips of the fingers were able to reach the proximal transverse crease of the palm. The examiner noted tenderness was present, but there were no deformities, no swelling, and no abnormal movement or guarding of movements. The hands showed normal dexterity, strength, and anatomy. Repetitive motion did not reduce the range of motion or function. The examiner noted the hand had no effect on the Veteran’s usual occupation or daily activities. The examiner noted a January 2011 x-ray that showed no evidence for bony pathology of the right hand. In a July 2012 notice of disagreement, the Veteran reported joint inflammation and chronic pain along with deformity in his right pinky, long finger, and right finger, with burning and numbness. See July 2012 NOD. In an April 2013 substantive appeal, the Veteran reported he had arthritis in his right hand. See April 2013 Form 9. In a September 2013 internal medicine consultative examination, the examiner noted the Veteran’s reports of burning pain in both hands. See January 2014 Medical Treatment Records – Furnished by SSA. The Veteran also reported pain with range of motion in both hands on evaluation. In a February 2014 VA examination, the Veteran reported that he had strained his right hand multiple times and that he was told he had arthritis of both hands. See February 2014 C&P Exam. However, after he was sent to get x-rays of the hands, there was no arthritis shown in the right hand. The Veteran reported that he experienced more pain with weather change and that he used his right hand for his walking cane. Regarding flare-ups, the Veteran indicated flares of pain with cold weather approximately six months of the year. On range of motion testing, the examiner noted there was no limitation of motion or evidence of painful motion for any fingers or thumbs. The February 2014 VA examiner noted that after repetitive use testing, there was no additional limitation of motion for any fingers post-test, there was no gap between the thumb pad and the fingers post-test, there was no gap between any fingertips and the proximal transverse crease of the palm, and there was no limitation of extension for the index finger or long finger post-test. The examiner noted there was no additional limitation of range of motion or functional loss following repetitive use testing. The examiner noted the Veteran did not have tenderness or pain to palpation for joints or soft tissue of either hand, including thumb and fingers. Hand grip and muscle strength testing was noted as normal, there was no ankylosis, and there were no other physical findings, complications, conditions, signs, or symptoms. The examiner noted the Veteran did not use any assistive devices for his right hand strain. In a July 2015 Board hearing, the Veteran reported that he used a cream, compression wrap, and Norco to treat his right hand pain. He indicated that his hand locks up and that it was worse in the wintertime. He reported that he was not able to use his hand when it locked up and that he had to warm his hand, put on a cream, or put on a compression sleeve to relieve the locking. The Veteran also reported that he took off last year as a bus driver, in part, because he was in so much pain. He reported that he had to drive with his hand, and it would lock up and he would take off work until it got better. He also indicated that his son helped with chores he should be doing. The Veteran’s wife also reported that it was hard for the Veteran to grab his cane that he needs to use to walk and that sometimes he would need to stop to rest because of his hand. In a June 2016 VA examination, the Veteran reported that his right hand hurt more, and it was daily, usually depending on the activity. He indicated that grabbing things usually made his hand hurt more and that the pain would last for a few hours. The Veteran reported that he thought he had arthritis, but the examiner noted that x-rays were negative for degenerative joint disease. The Veteran reported using topical cream to treat his hand pains but denied other treatments. Regarding flare-ups, in addition to worse pain during certain activities such as gripping things, the Veteran reported the pain was worse when it was cold. The examiner did not report any functional loss or functional impairment of the joint or extremity, including but not limited to repeated use over time. On range of motion testing of the right index, long, ring, and little fingers’ metacarpophalangeal (MCP), proximal interphalangeal (PIP), and distal interphalangeal (DIP) joints, max extension were all to 0 degrees. Regarding max flexion in the right index, long, ring, and little fingers, MCP joints were all to 90 degrees, PIP joints were all to 100 degrees, and DIP joints were all to 65 degrees. The right thumb’s MCP and interphalangeal IP joints’ max extension were to 0 degrees. Regarding max flexion in the thumb, MCP joint was to 60 degrees and IP joint was to 90 degrees. The examiner noted there was not a gap between the pad of the thumb and the fingers, there was not a gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The examiner noted that range of motion itself did not contribute to functional loss and that there was no pain noted on examination. The examiner noted there was no evidence of pain with use of the hand and there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner noted there was no additional functional loss or range of motion after three repetitions. The examiner noted there was no pain, weakness, fatigability or incoordination that significantly limited functional ability with flare-ups. Hand grip and muscle strength testing was noted as normal, there was no ankylosis, and there were no other physical findings, complications, conditions, signs, or symptoms. The examiner noted the Veteran’s occasional use of over the counter compression glove for a few hours daily for right hand pain. The examiner noted that a June 2016 imaging study of the hand showed the DIP joints appeared normal, the joint spaces were normal with no narrowing suggestive of degenerative change, mineralization was normal, and that there were no changes from the 2014 views. The examiner noted an impression of normal right hand views. Analysis Upon review of the record, the Board finds that an initial rating of 10 percent is warranted for right hand strain. Range of motion testing performed during VA examinations conducted in March 2011, February 2014, and June 2016 revealed no limitation of motion of any digits in the left hand and no gaps between the thumb and the fingers, the tips of the finger and the proximal crease of the palm, and the thumb pad and the fingers with the thumb attempting to oppose the fingers that would warrant a compensable rating under DC 5228 or DC 5229. However, the Board finds that the Veteran has consistently and credibly reported symptoms of right hand pain and locking that has affected his ability to grip and grab things, which has impacted his ability to drive as a bus driver, to perform household chores, and to use his cane which he uses to ambulate. Thus, after resolving all doubt in the Veteran’s favor, the Board finds that an initial 10 percent rating is warranted. See 38 C.F.R. § 4.59 (painful joints warrant a minimum compensable rating). The Board finds that a rating in excess of 10 percent is not warranted at any point during the period under review. Even considering the Veteran’s subjective complaints of pain and other symptoms, limitation of motion of the fingers or ankylosis has not been shown such that a higher rating would be warranted. See 38 C.F.R. § 4.71a , Diagnostic Codes 5216 - 5229; see also Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). 2. Entitlement to an initial rating in excess of 10 percent for a left ankle sprain with tarsal tunnel syndrome, status post-surgery (hereinafter “left ankle disability”). The Veteran is in receipt of an initial 10 percent rating for left ankle disability pursuant to Diagnostic Code 5271. He contends that a higher rating is warranted. Normal ankle dorsiflexion is from 0 to 20 degrees, and normal ankle plantar flexion is from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Moderate limitation of motion of the ankle warrants a 10 percent rating and marked limitation of motion of the ankle warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5271. The Board notes that descriptive words such as “slight,” “moderate,” “marked,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Factual Background VA treatment records from 2011 to 2014 noted the Veteran’s ongoing chronic left ankle pain, use of ankle brace, and use of medication for pain. See February 2013, May 2016, and August 2018 CAPRI. A March 2011 VA examination noted left ankle dorsiflexion was 0 degrees to 5 degrees, retroflexion was 0 degrees to 10 degrees, with painful motion noted. See October 2011 C&P Exam. The examiner noted there was no varus or valgus angulation of the os calcis in relationship to the long axis of the tibia and fibula. There was tenderness present but normal strength was noted. The Veteran walked on toes and heels without difficulty and without pain. The examiner noted there was no guarding of movement, no swelling, no deformities, no abnormal movement or guarding of movements, and no pain expression on manipulation. The examiner also noted the Veteran had normal stability, that heel and toe walk did not decrease the range of motion or function, and there was no decrease in range of motion or joint function against resistance. The examiner noted the Veteran’s ankle sprain diagnosed as surgical residuals to include subjective pain, painful motion, and limited motion. In a July 2012 notice of disagreement, the Veteran reported that he could not bear weight on his left foot without pain or locking. See July 2012 NOD. He indicated that he was issued a brace for his left ankle. In an April 2013 substantive appeal, the Veteran reported that he should receive a higher rating because of the limited motion in his ankle, poor weight bearing, and chronic pain. See April 2013 Form 9. In a September 2013 internal medicine consultative examination, the Veteran reported a burning pain, a stabbing pain, and a sensation of numbness in the left ankle and foot that was present constantly and every day. See January 2014 Medical Treatment Records – Furnished by SSA. He reported that pain was aggravated by prolonged sitting, standing, and walking, and that the pain was more prominent in the morning upon awakening and late in the day and evenings. The examiner noted that on examination, there was pain with range of motion of all joints of the lower extremities, as well as, active resistance and guarding making accurate assessment difficult. The examiner noted the left ankle’s dorsiflexion was limited to neutral and that there was a well-healed surgical incision over the left medial ankle. In a February 2014 VA examination, the examiner noted historically that he had ankle surgery in 2007, was subsequently sent to rehab, but the Veteran indicated his ankle did not get any better. The examiner noted that an x-ray in 2010 showed additional avulsion injuries since his surgery. The examiner noted the Veteran’s daily pain at a constant 8 out of 10 level, he wears ankle brace with regular shoes, and he received quarterly steroid injections. The examiner noted that the Veteran did not report flare-ups that impacted the function of the ankle. On range of motion measurements, left ankle plantar flexion and dorsiflexion were both to 10 degrees, with objective evidence of painful motion for both beginning at 10 degrees. There was no additional limitation in range of motion following repetitive use testing of at least three repetitions; however, contributing factors of disability after repetitive use included less movement than normal, pain on movement, disturbance of locomotion, and interreference with sitting, standing, and weight-bearing to the left ankle. There was localized tenderness or pain on palpation of joints or soft tissue of the left ankle. On muscle strength testing, there was active movement against some resistance (4/5) to the left ankle plantar flexion and dorsiflexion. Regarding joint stability, there was no laxity compared with the opposite on anterior drawer test and talar tilt test. The February 2014 VA examiner noted the Veteran had ankylosis of the left ankle, subtalar, and/or tarsal joint. The examiner noted severity of ankylosis in plantar flexion between 30 degrees and 40 degrees and in dorsiflexion at more than 10 degrees. The examiner noted there were no additional conditions. The examiner noted that residuals signs and/or symptoms due to the 2007 left ankle surgery includes pain and very limited range of motion. The examiner noted that the scars related to the left ankle surgery was not painful or unstable, and the total area of all related scars was not greater than 39 square centimeters. The Veteran regularly used a brace for the left ankle. Regarding functional impact, the examiner noted the Veteran was unable to walk or stand for extended periods of time. In a July 2015 Board hearing, the Veteran reported that his left ankle was constantly in pain, would swell, and was limited in motion. See July 2015 Hearing Testimony. He indicated that he would ice and elevate his ankle to reduce the swelling. He also reported having to adjust his ankle to lay off the edge of the bed when he slept to reduce the pain. He reported trying different treatments without improvement. He reported using a brace and compression socks. He reported receiving shots in his ankles but indicated that he was limited in the amount since the shots needed to be split up because he also received shots in his hips, knees, and lower back. He reported the shots helped but he still experienced pain. The Veteran also reported that ankle replacement surgery was recommended but he opted not to have the surgery. In a June 2016 VA examination, the Veteran reported constant pain in his left ankle and that he receives injections into his left ankle about every three months, with the last one about six weeks ago. See June 2016 C&P Exam. The Veteran indicated he had an ankle brace he used when he wore his tennis shoes which was nearly every day and that his ankle swells more when he was not wearing his ankle brace. He indicated that he had Norco for his back which helped his ankles too. He reported feeling that he had less range of motion in his left ankle. The Veteran did not report flare-ups of the ankle. On range of motion testing, dorsiflexion was to 5 degrees and plantar flexion to 40 degrees. The examiner noted that the range of motion itself did not contribute to a functional loss. No pain was noted on examination. The examiner noted there was no evidence of pain on weight bearing, no objective evidence of localized tenderness or pain on palpation, and no objective evidence of crepitus. The examiner noted the Veteran was able to perform repetitive use testing with at least three repetitions and that there was no additional loss of function or range of motion after three repetitions. The examiner noted that pain, weakness, fatiguability, or incoordination did not significantly limit functional ability with repeated use over time. Muscle strength testing was noted as normal with no reduction of muscle strength, there was no muscle atrophy, and no ankylosis noted. The June 2016 VA examiner noted there was left ankle instability or dislocation suspected but noted there was no laxity compared with opposite side on anterior drawer test and talar tilt test. The examiner noted that the scars related to the 2007 left ankle surgery was not painful or unstable, and the total area of all related scars was not greater than 39 square centimeters. The examiner noted the Veteran’s occasional use of a left ankle brace, as needed for left ankle pain and swelling. The examiner noted a September 2013 left ankle x-ray that revealed no soft tissue swelling, maintained bony alignment, normal ankle mortise, no fractures or dislocation, and mild narrowing of the ankle mortise. The impression was mild left ankle osteoarthritis. Regarding functional impact, the examiner noted no running, jogging, and jumping recommended. The examiner also noted no prolonged standing for more than 10 to 15 minutes or walking for more than two blocks. Analysis Prior to June 13, 2016 For the period prior to June 13, 2016, the Board notes that a February 2014 VA examination specifically found that the Veteran had ankylosis in the left ankle in plantar flexion between 30 degrees and 40 degrees, and in dorsiflexion at more than 10 degrees. As there is evidence of ankylosis in the left ankylosis in dorsiflexion at more than 10 degrees, a 40 percent rating is warranted for this period on appeal under DC 5270. Although the March 2011 VA examination did not specifically note ankylosis, the Board notes that the March 2011 VA examiner noted similarly severe limitation of range of motion with dorsiflexion to 5 degrees and plantar flexion to 10 degrees, with pain. The Board also notes that considering the February 2014 VA examination is the only VA examination conducted within this period on appeal, from the effective date of June 1, 2011, for the grant of service connection of the left ankle disability, the Board will resolve reasonable doubt in the Veteran’s favor, and assign a 40 percent rating for the entirety of this period on appeal from June 1, 2011 to June 13, 2016. The Board has considered alternative diagnostic codes for this period on appeal, but it finds that none would provide a higher rating. Moreover, an evaluation in excess of 40 percent is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) because a higher rating is not available under the diagnostic codes pertaining to range of motion. From June 13, 2016 The Board finds an increase under Diagnostic Code 5271 to 20 percent from June 13, 2016, is warranted because his limitation of motion of the left ankle is marked. At his June 2016 VA examination, the Veteran’s dorsiflexion was limited to 5 degrees, indicating that he had one quarter of normal dorsiflexion (20 degrees). Additionally, his plantar flexion was limited to 40 degrees. The VA examiner also noted that the Veteran suffered from instability. The Board also considered the Veteran’s competent and credible lay statements discussing how his left ankle disability had gotten progressively worse and he had increased pain and swelling. Additionally, the VA examiner noted the functional impact, in which the Veteran could not run, jog, jump, stand for more than 10 to 15 minutes, or walk for more than two blocks. When considering the functional impairment caused by his left ankle disability along with the range of motion in his June 2016 VA examination, his disability is more nearly described as marked limitation of motion. Therefore, a 20 percent rating under Diagnostic Code 5271 is granted from June 13, 2016. This is the maximum rating available under Diagnostic Code 5271. The only Diagnostic Code that provides for a rating higher than 20 percent is Diagnostic Code 5270, ankylosis. 38 C.F.R. § 4.71a. However, as noted above, the June 2016 VA examiner specifically found the Veteran did not have ankylosis in his left ankle. As such, any higher rating is not warranted. As described by both the medical and lay evidence, the Veteran retains mobility in his left ankle; he does not manifest ankylosis of any form for this later period on appeal. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Therefore, use of Diagnostic Code 5270 is not warranted for this later period on appeal. In summary, a 20 percent disability rating, but no higher is granted for the Veteran’s left ankle disability, effective June 13, 2016. 3. Entitlement to an initial compensable rating for hemorrhoids. The Veteran seeks an initial compensable rating for his service-connected hemorrhoids, effective June 1, 2011. The Veteran’s service-connected hemorrhoids are rated as noncompensable under 38 C.F.R. § 4.114, Diagnostic Code 7336. Under Diagnostic Code 7336, a non-compensable rating is given for mild or moderate internal or external hemorrhoids. Large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences, are rated 10 percent disabling, and hemorrhoids with persistent bleeding and with secondary anemia, or with fissures, are rated 20 percent disabling. 38 C.F.R. § 4.114, DC 7336. Factual Background In a March 2011 VA examination, the Veteran reported symptoms of anal itching, pain, and swelling. See October 2011 C&P Exam. The examiner noted that the Veteran’s hemorrhoids had occasional bleeding and were mild. There was no thrombosis. The examiner noted that the Veteran used over the counter products such as tucks, dibucaine, and sitz baths with no side effects. Historically, the Veteran has undergone three hemorrhoid surgeries in 1993, 1998, and in 2010. The examiner noted there were no effects of the condition on occupational functioning and daily activities. The examiner noted that on physical examination, there was no evidence of fecal leakage, the rectum and anus was normal, there were no signs of anemia, there were no fissures, there were no hemorrhoids, there was no evidence of bleeding, there was no rectal prolapse, and there was normal sphincter tone. In a July 2012 notice of disagreement, the Veteran reported that he had surgeries three times in service and that he still had frequent painful recurrences. See July 2012 NOD. In a February 2014 VA examination regarding his hemorrhoids, the Veteran reported that he had itching and bleeding when he wiped and in the commode. See February 2014 C&P Exam. He reported that he bought his own suppositories and tucks which he used for the itching. He indicated that he did not have a GI consult and had not mentioned this to his primary care physician. The examiner noted the Veteran’s treatment plan did not include taking continuous medication for the diagnosed condition and that the Veteran did not have any findings, signs or symptoms attributable to the hemorrhoid diagnosis. On physical examination of the rectal/anal area, the examiner found no external hemorrhoids, anal fissures, or other abnormalities, and that examination results were normal. The examiner noted that on rectal examination, there was no excessive tissue or anal irritation noted and that excellent rectal tone was present. The examiner found that the Veteran’s rectum or anus condition did not impact his or her ability to work. In a July 2015 Board hearing, the Veteran reported reoccurring flare ups of hemorrhoids that were itchy and bled. See July 2015 Hearing Testimony. He indicated that he used tucks and suppositories as soon as the itching starts. He indicated that in the last examination he did not have issues with hemorrhoids as the flare up had cleared by then. He reported that his hemorrhoids did not get as bad as when he used to have them during service when he had them cut out. He reported experiencing at least four flare-ups a year. He reported some diarrhea, but he reported taking fiber. He reported that as a bus driver that the hemorrhoids were irritating, since they itched and hurt. In a June 2016 VA examination regarding his hemorrhoids, the Veteran reported that since the last VA examination in February 2014, he has had reoccurrences of hemorrhoids with burning, itching, and sometimes bleeding. See June 2016 C&P Exam. He stated that flares occurred about twice a month which he treated with tuck pad and over the counter suppositories. He reported that he was not currently having a flare. The examiner noted the Veteran’s treatment plan did not include taking continuous medication for the diagnosed condition and that the Veteran did not have any findings, signs or symptoms attributable to the hemorrhoid diagnosis. The examiner noted that no examination was performed since the Veteran reported that no symptoms were present at the time of the examination. The examiner noted that a CBC test for anemia was conducted in March 2016. However, the examiner indicated there were no significant diagnostic test findings or results. The examiner noted that the VA treatment records were silent for any evaluation or treatment of hemorrhoids during the relevant period on appeal. The examiner found that the Veteran’s rectum or anus condition did not impact his or her ability to work. The examiner noted the Veteran was currently employed part-time as a school bus driver since August 2015 and that he had done this in the past. Analysis The Board finds that a compensable rating for hemorrhoids is not warranted. That is, the Veteran’s hemorrhoids have not been shown to be large or thrombotic; irreducible, with excessive redundant tissue, evidencing frequent recurrences; nor has persistent bleeding with secondary anemia or fissures been shown. Rather, as noted on the VA examination reports that considered the Veteran’s statements, at worst, the hemorrhoids were assessed as being mild to moderate with no other pertinent findings; and specifically, had been noted as asymptomatic at the times of examination. While consideration has been given to the Veteran’s reports of flares of bleeding and itching, those symptoms alone do not rise to the level to warrant a compensable rating under the applicable criteria. Rather, those symptoms are contemplated under the criteria for a noncompensable rating for mild to moderate hemorrhoids. Therefore, a compensable rating is not warranted at this time. 38 C.F.R. §§ 4.7, 4.114, DC 7336. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an initial compensable rating for hemorrhoids is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to a TDIU. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Service connection is in effect for the Veteran’s posttraumatic stress disorder (PTSD), rated as 50 percent disabling; thoracolumbar spine disability, rated as 40 percent disabling; left foot disability, rated as 30 percent disabling; asthma, rated as 30 percent disabling; left hand arthritis, rated as 10 percent disabling; left hip limitation of flexion, rated as 10 percent disabling; left knee disability, rated as 10 percent disabling; right knee disability, rated as 10 percent disabling; left ankle disability, rated as 40 percent disabling prior to June 13, 2016, and 20 percent disabling thereafter; tinnitus, rated as 10 percent disabling; and right hand strain, rated as 10 percent disabling. The Veteran is also service connected for left hip limitation of abduction and rotation, right ankle sprain, right hip degenerative joint disease, bilateral eye disability, hemorrhoids, erectile dysfunction, and scars; all rated as 0 percent disabling. His combined schedular rating is at least 90 percent or more throughout the appeal period and thus his service-connected disabilities satisfy the schedular criteria for a TDIU set forth in 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Factual Background A February 2011 VA examination noted the Veteran’s complaints of trouble seeing at night and driving at night. See February 2011 C&P Exam. A February 2011 VA examination noted the Veteran’s tinnitus did not have any significant effects on occupation. See February 2011 C&P Exam. In a March 2011 VA examination, the examiner noted the Veteran’s thoracolumbar spine condition may potentially interfere with forms of occupation requiring vigorous physical activity. See October 2011 C&P Exam. The examiner noted that the Veteran’s lower extremity limitations included difficulty navigating stairs, walking and running long distances, or standing stationary for extended lengths of time. The examiner noted the Veteran’s upper extremity limitations included difficulty performing motions requiring torque such as opening a jar or using mechanics tools and that physical exercise such as push-ups are sometimes difficult to perform. The examiner noted the Veteran was able to walk no more than ¼ mile and stand no more than 10 minutes. The examiner noted the Veteran’s hemorrhoids and erectile dysfunction did not affect his occupational functioning. Regarding asthma, the examiner noted the Veteran was able to walk a mile prior to respiratory difficulty. The examiner noted the Veteran’s hands did not have any effect on the Veteran’s usual occupation. Regarding his PTSD, the examiner noted the Veteran’s social and occupational functioning appeared to be moderately impaired, that he showed symptoms of re-experiencing traumatic symptoms, avoidance behaviors, and arousal symptoms, and that there was reduced reliability and productivity due to these PTSD symptoms. The examiner noted limited social involvement, poor intimate relationships, irritability, and concentration problems. In a 2011 Social Security Administration (SSA) disability determination, the Veteran’s claim was denied since SSA determined that the Veteran’s conditions of PTSD, back, knee, ankle and hip problems, arthritis, hypertension, kidney and eye problems were not severe enough to keep him from working. See January 2014 Medical Treatment Records – Furnished by SSA. The determination indicated that as long as the Veteran continued to follow his doctor’s orders, his conditions should remain under control. A February 2013 VA treatment record noted the Veteran’s employment as a school bus driver and that he started in August 2012. See March 2014 CAPRI. An April 2013 VA treatment record noted the Veteran worked full time in the transportation department. See October 2018 CAPRI. In a September 2013 internal medicine consultative examination, the Veteran stated that he worked part-time as a bus driver and that he was having difficulty with his job duties due to his service-connected disabilities. See January 2014 Medical Treatment Records – Furnished by SSA. In a September 2013 psychological interview, the Veteran reported that he got angry a lot. See id. The Veteran reported that three months after his retirement from military service, he began working at a jail, but indicated his aggressive behaviors seemed to escalate dramatically and that he had expressed to his wife at that time that he enjoyed the violence and tension from the jail. He reported that he quit after he became violent toward his son, chasing him down the street. He reported that he used to manage the family finances, but he began to get very frustrated, so his wife took over the job. The Veteran reported excessive road rage. The Veteran reported that he had a job driving a school bus and that he was unable to handle the stress of a bus full of children and that they now have him driving the activity bus which picks up kids who have to go to school early. He said this usually involved two or three kids. He reported working six hour days and described the job as very stressful for him. He reported that he liked to be alone and that he did not deal well with other people. The Veteran reported that he and his wife still had a lot of friends, but they were not allowed back to the home of one of their friends after the Veteran lost his temper there. He also indicated that he no longer attended his son’s basketball games after a hostile confrontation. The examiner noted the Veteran was able to remember things and could concentrate if he remained calm. A January 2014 VA treatment record noted the Veteran was working six hours daily as a school bus driver. See October 2018 CAPRI. A July 2014 VA treatment record noted the Veteran was attending online school studying business management and worked as a school bus driver. See id. A November 2014 VA treatment record noted the Veteran was working as a school bus driver but had quit in June 2014. See May 2016 CAPRI. The Veteran reported that he was forgetting streets, was getting frustrated, could not control his anger, and was falling asleep. The Veteran wife added that he was arguing with other employees. February 2014 VA examinations regarding the left foot and left ankle disabilities noted the Veteran was unable to walk or stand for extended periods of time. See February 2014 C&P Exam. February 2014 VA examinations found the Veteran’s hand, thumb, or finger conditions, hemorrhoids, and scars did not impact his ability to work. See February 2014 C&P Exam. A December 2015 VA treatment record noted the Veteran had not worked since August 2014 and that he was a school bus driver. See May 2016 CAPRI. The record also noted he quit online school and that he spent his time fixing things. A March 2016 VA treatment record noted the Veteran had completed some college and had a goal to become a teacher or coach. See August 2018 CAPRI. A May 2016 VA treatment record noted the Veteran was currently working in transportation school. See id. A subsequent May 2016 VA treatment record noted the Veteran used “challenging beliefs worksheets” to successfully cope with a work situation that was making him stressed and angry. See May 2016 CAPRI. June 2016 VA examinations found the Veteran’s right hand strain and hemorrhoids did not impact his ability to perform any type of occupational task. See June 2016 C&P Exam. June 2016 VA examinations found the left foot and left ankle disabilities’ functional impact included no running, jogging, or jumping recommended and no standing for more than 10 to 15 minutes or walking for more than two blocks. See June 2016 C&P Exam. A June 2017 PTSD VA examination noted the Veteran’s PTSD symptoms included depressed mood, anxiety, sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintain effective work and social relationships, difficulty in adapting to stressful circumstances, and impaired impulse control. See June 2017 C&P Exam. The Veteran reported that he had not worked since August 2014 but was going back to work in September 2016 as a school bus driver. The examiner noted the Veteran’s occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. July 2017 VA examinations noted the Veteran’s thoracolumbar spine disability and asthma did not impact his ability to work. See July 2017 C&P Exam. The examiner noted the Veteran worked as a school bus driver. In a September 2018 VA examination, the examiner noted the Veteran’s thoracolumbar spine disability impacted his ability to work. See September 2018 C&P Exam. Specifically, the examiner noted the Veteran was limited to prolonged sitting or driving to 45 minute intervals and then would need to stand and stretch for a while. The examiner noted the Veteran had a sit to stand desk at work and that his standing was still limited to 10 minute intervals. The examiner noted the Veteran could be up on his feet for about 45 minutes before needing to sit and rest. He was limited to lifting less than 20 pounds and was limited from repetitive bending. During examination, the Veteran reported that he was currently employed in transportation with a school district and that he usually performed office activities and drove the school bus. Analysis As noted in the January 2016 Board decision, the Veteran had testified that during his July 2015 Board hearing that his service-connected disabilities prevent him from working. See July 2015 Hearing Testimony. As such, in the January 2016 decision, the Board found the record reasonably raised a claim for a TDIU and remanded, in part, for a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployment, to be sent to and completed by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A review of the record shows that VA sent out the requested forms in February 2016 to the Veteran, but the Veteran failed to return the VA Form 21-8940, to include any pertinent information regarding history of employment. See February 2016 other. After a review of the record, the Board finds that the notwithstanding the severity of his service-connected disabilities, because it seems the Veteran is currently working, the evidence does not show that his service-connected disabilities prevent him from securing and following substantially gainful employment. The Board notes that the Veteran has had a longstanding employment history with the same school district as a school bus driver and as noted in the most recent VA examination in 2018, was still working as a bus driver and conducting office work. Based on the evidence provided, the Board finds that the Veteran is still capable of performing the physical and mental acts required by employment. The Board also notes that although examinations of record had indicated his service-connected disabilities have impacted his work, none of the records have indicated an inability to maintain employment or that the disabilities prevented the Veteran from all substantially gainful employment. The Board also notes that there is no adequate contrary evidence of record that supports the Veteran’s TDIU claim. The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Although the Veteran has multiple service-connected disabilities, the Board finds that no disability singly or combined precludes him from securing or following a substantially gainful occupation. The Board finds that the preponderance of the evidence of record is against a finding that the Veteran’s service-connected disabilities preclude substantially gainful employment. For these reasons, entitlement to a TDIU is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.