Citation Nr: 21001690 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-00 960 DATE: January 11, 2021 ISSUE Entitlement to a disability rating in excess of 20 percent for traumatic degenerative joint disease of the right ankle. ORDER Entitlement to a disability rating in excess of 20 percent for traumatic degenerative joint disease of the right ankle is denied. REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period on appeal, the Veteran's right ankle traumatic degenerative joint disease has been manifested by pain, difficulty walking, flare ups and limitation in motion with dorsiflexion to 0 degrees at worst and plantar flexion to 5 degrees at worst, resulting in marked limitation of flexion of the right ankle. 2. The preponderance of the evidence shows that for the period on appeal ankylosis of the right ankle has not been shown. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for service-connected traumatic degenerative joint disease of the right ankle have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from February 1968 to December and from December 1972 to February 1993. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran's claim of entitlement to service connection for a right ankle disability was granted in March 1993 with a 0 percent rating. A rating decision from July 1997 increased the Veteran's rating for that disability to 10 percent, effective April 1996. The Veteran claimed entitlement to an increased disability rating for his service-connected right ankle disability on May 13, 2013. The disability rating of 10 percent was continued for the right ankle. The Veteran filed a timely Notice of Disagreement (NOD) in April 2015, and his claim was certified to the Board in January 2017. The Veteran testified in a Board video hearing before the undersigned Veterans Law Judge (VLJ) in August 2019. A transcript of the hearing is of record. The Board remanded the issue on appeal for additional development in October 2019. In August 2020 the RO issued a rating decision which increased the Veteran’s disability rating for his right ankle disability to 20 percent, effective May 13, 2013 before returning the matter to the Board. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's October 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Veteran currently has a 90 percent overall disability compensation ratng. There is no lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that consideration of TDIU is inferred by the record, and will be remanded for further development. The Board also finds that SMC is not inferred by the record, and as such will not be discussed. Increased Schedular Ratings - General Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In assigning hyphenated diagnostic codes, the number assigned to the residual condition on the basis of which the rating is determined will generally represent injuries. Diseases will be identified by the number assigned to the disease itself, with the residual condition added, preceded by a hyphen. 38 C.F.R. § 4.27. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See also VAOPGCPREC 9-04 (holding that separate ratings under Diagnostic Code 5260 for limitation of flexion of the knee and Diagnostic Code 5261 for limitation of extension of the knee may be assigned). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the United States Court of Appeals for Veterans’ Claims (Court) recently addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather “it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code.” Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. 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. However, the evaluation of the same “disability” or the same “manifestations” under various diagnoses is not allowed. See 38 C.F.R. § § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity.” See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The terms “slight,” “marked,” “moderate,” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence).   Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran's claims.  1. Entitlement to a disability rating in excess of 20 percent for traumatic degenerative joint disease of the right ankle. Right Ankle Disability – Legal Standards The Veteran’s right ankle degenerative joint disease is rated under Diagnostic Code 5271, governing limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limitation of motion of the ankle, and a 20 percent rating is warranted for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Board is cognizant that Diagnostic Code 5271 itself does not provide for ratings pursuant to range of motion measurements, unlike diagnostic codes for other physical disabilities such as the knee or the back. 38 C.F.R. § 4.71a. The Board notes that VA’s M21-1 Adjudication Procedures Manual provides guidance for its examiners, stating that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. However, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs. The Board is not bound by Department manuals, circulars, or similar administrative issues, to include the M21-1. 38 C.F.R. § 20.105 (2019) (formerly 38 C.F.R. § 19.5 in 2018 and earlier). As such, the Board takes note of VA examiners’ range of motion measurements during examinations for the ankle under this diagnostic code but will adjudicate the Veteran’s claim for an increased rating using the criteria from Diagnostic Code 5271 per se. The Board notes that normal range of motion for the ankle on dorsiflexion is to 20 degrees and to 45 degrees on plantar flexion. See 38 C.F.R. § 4.71a, Plate II. Other diagnostic codes for disabilities of the ankle follow. Ankylosis (bony fixation) of either ankle, depending upon the favorability of the angle of fixation, warrants evaluation from 20 to 40 percent. 38 C.F.R. § 4.71a , Diagnostic Code 5270. Ankylosis of the subastragalar or tarsal joint in good weight-bearing position warrants a 10 percent evaluation, while such ankylosis in a poor weight-bearing position warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5272. Malunion of the os calcis or astragalus with moderate deformity warrants a 10 percent evaluation, and marked deformity warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5273. Astragalectomy warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5274. The Veteran is currently in receipt of a 20 percent disability rating for his service-connected right ankle disability under Diagnostic Code 5271. The Veteran has claimed that his service-connected right ankle disability is worse than currently rated. Specifically, in an April 2015 NOD, the Veteran contends that he now has to wear brace because prior to wearing a brace his condition would cause him to lose his balance and fall down. Evidence relevant to the severity of the Veteran's right ankle disability includes VA examination reports dated in February 2014, November 2016 and November 2019 as well as VA and private treatment records. VA treatment records indicate that during the appeal period the Veteran continued to receive treatment and medication for his ankle disability. The Veteran was afforded a VA examination for his right ankle in February 2014. This examiner noted a diagnosis of degenerative joint disease of the right ankle. The Veteran stated that his condition was generally the same from his last exam in 1993. The Veteran noted some giving way, weakness and mild instability. Flare-ups were noted 1-2 times a year, lasting a few hours each time. Right ankle plantar flexion was measured at 45 degrees, where 45 degrees was considered normal. There was no objective evidence of painful motion. Right ankle plantar dorsiflexion was measured at 20 degrees, where 20 is considered normal. Again, there was no objective evidence of painful motion. For range of motion testing after three repetitions, the right ankle plantar flexion ended at 45 degrees and dorsiflexion ended at 20 degrees. Joint stability tests were normal, and no ankylosis was noted. The Veteran did not report the use of any assistive devices. The Veteran received another VA examination for his right ankle in November 2016. This examiner noted a diagnosis of traumatic degenerative joint disease of the right ankle, lateral collateral ligament sprain and osteoarthritis of the right ankle. Flare-ups were noted and the Veteran explained they occurred once every other month. Initial range of motion measurements were 45 degrees for right ankle plantar flexion and was no objective evidence of pain on the exam. Right ankle dorsiflexion was 20 degrees, and again no pain was noted on the examination. Range of motion measurements after 3 repetitions remained the same. Muscle strength measurements were five out of five for the right ankle. Joint instability was noted with talar laxity compared to the opposite side. The examiner noted that the Veteran was unable to balance on his right foot without a brace. No ankylosis was noted on the examination. In August 2018 the Veteran testified before the Board at a video conference hearing. At that time the Veteran indicated that the November 2016 VA examination was not adequate. Specifically, the Veteran stated that all the examiner did was tell him to "stand up and then she grabbed my foot [and]tried to move it back and forth, and that's all she did.” Additionally, the Board notes that the examiner did not examine the left ankle and try to compare it to the right ankle. In an October 2019 remand the Board found the November 2016 examination to be inadequate. In this finding the Board noted that the VA examination did not report range of motion testing results in active and passive motion, and in weight-bearing and non-weight-bearing, and with the range of the oppose undamaged joint in accordance with the Court's decision in Correia v. McDonald,28 Vet. App. 158 (2016). Therefore, the matter was remanded in order to afford the Veteran a new examination. VA treatment records contain a May 2019 x-ray examination. Within that report the examiner noted a stable medial malleolus exostosis as well as corticated density. Multiarticular degenerative changes of the tibiotalar and subtalar joints were noted. No acute fracture, dislocation or soft tissue swelling was noted. The Veteran was afforded a new examination for his right ankle in December 2019. The previous diagnosis of traumatic degenerative joint disease of the right ankle was noted. The Veteran reported chronic pain and issues with weight bearing. Initial range of motion testing noted zero to 40 degrees for right ankle plantar flexion, and zero to 10 degrees for right ankle dorsiflexion. Pain was noted on both motion measurements and the examiner determined that it contributed to functional loss, specifically limiting walking and climbing. There was evidence of crepitus but no evidence of pain with weight bearing. There was objective evidence of moderate localized tenderness or pain on palpation of the ankle joint. Range of motion measurements after 3 repetitions remained the same. There was pain noted after repeated use over time, with an estimate of zero to 30 degrees for right ankle plantar flexion, and zero to 0 degrees for right ankle dorsiflexion. Muscle strength was five out of five. There was no objective evidence of pain on weight bearing. The examination was not conducted during a flare- up but the examiner described the range of motion during flare-ups as zero to 30 degrees for right ankle plantar flexion, and zero to 0 degrees for right ankle dorsiflexion. Pain was noted to significantly limit functional ability during flare-ups. This Veteran was noted to wear a brace consistently on his right ankle. The passive range of motion was the same as the active range of motion. No joint instability or ankylosis was noted on the examination. The examiner stated that the Veteran’s condition would impact his ability to perform occupational tasks because he is limited in his ability to stand for an extended period of time, walk or climb. There were no additional factors noted to contribute to the Veteran’s disability. Private treatment records from December 2019 reflect that the Veteran sought treatment and physical therapy for his right ankle. Mild degenerative patterns of talus and tarsal hypomobility were noted. The Veteran reported pain, instability, weakness and decreased range of motion. He stated that pain came with any weight bearing. Right ankle plantar flexion was measured at 5 degrees and right ankle plantar dorsiflexion was measured at 4 degrees. In consideration of the above, for the period on appeal the Board finds that the relevant rating criteria are met as to the current rating of 20 percent for the Veteran’s right ankle disability, but no higher. For this period, the Board notes medical evidence indicating a marked limitation of motion in that range of motion testing for the right ankle with a worst case of 5 degrees of plantar flexion and 0 degrees of dorsiflexion for the right ankle, with pain on motion and limiting range of motion. The impact of the flare-ups has increased, per the report of the Veteran to the examiner in November 2019. While the Veteran has reported lay observable symptoms such as pain, difficulty walking and limitation of motion, these statements also correspond to the objective medical evidence of record, all of which shows that the Veteran has a range of motion within the limitations contemplated by a 20 percent rating for limitation of motion of the right ankle. A higher evaluation of 30 percent is not warranted unless medical evidence indicates ankylosis of the ankle in dorsiflexion between zero and 10 degrees, or ankylosis of the ankle in plantar flexion between 30 and 40 degrees. The Veteran has never had ankylosis diagnosed in the right ankle. No rating higher than 20 percent is available for degenerative arthritis for the ankle. See 38 C.F.R. § 4.71a, Diagnostic Codes 5271. The Board has also examined other applicable diagnostic codes, and notes that DC 5272 and 5274 limit the maximum disability rating to 20 percent. The only available diagnostic code that allows for a disability rating higher than 20 percent is DC 5270 for ankylosis of the ankle. As indicated above however, this diagnostic code is inapplicable, as the examiners have all indicated that the Veteran does not have ankylosis. The Board also notes that through the Veteran's lay statements and testimony, at no point has he indicated that he has ankylosis of the right ankle. As such, DC 5270, the only diagnostic code that would allow for a disability rating higher than the current 20 percent, is inapplicable. The Board has also considered the Veteran's reports of pain due to his service-connected right ankle disability. Importantly, the provisions of 38 C.F.R. § 4.59, allow for at least the minimum compensable rating for the joint for pain which results in functional loss. While the Veteran's right ankle limitation of motion does exhibit pain, which results in functional loss, the stated intention of 38 C.F.R. § 4.59 is "to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The Board notes that 38 C.F.R. § 4.59 does not envision multiple minimum compensable ratings for pain within the same joint. As the Veteran is now currently in receipt of the 20 percent disability rating for his right ankle, which is beyond the minimum 10 percent rating provided for pain, providing an additional 10 percent disability rating for pain associated with right ankle would violate the prohibition against pyramiding. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In reaching the above conclusion, the Board has not overlooked the Veteran's statements and testimony with regard to the severity of his service-connected ankle disability. In this regard, the Veteran is competent to report on factual matters of which he has firsthand knowledge, e.g., experiencing pain and weakness, or instability. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Lay evidence was provided by the Veteran through submitted statements, his Board hearing testimony and during the course of his VA examinations. However, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise to diagnose or observe, which the Veteran has not been shown to have or where these types of findings are not readily observable by a lay person, the Board has accorded greater probative weight to objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports. See Woehlaert, 21 Vet. App. at 456 (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board notes the arguments of the Veteran’s representative that her client the Veteran deserves a higher rating, but notes that no examiner has noted criteria that would enable a higher rating under Diagnostic Code 5271 or a different diagnostic code. Neither the Veteran nor his Representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (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). As such, the Board finds that the preponderance of evidence is against assigning a rating in excess of 20 percent for right ankle degenerative joint disease. See 38 C.F.R. § 4.71(a), Diagnostic Code 5271; see also 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran’s right ankle disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings were considered but are not warranted based on the evidence discussed above. See Hart, 21 Vet. App. at 505. REASONS FOR REMAND 1. Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and 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. Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service- connected disabilities alone are of sufficient severity to produce unemployability". Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19. The ultimate question is whether the Veteran, in light of his service connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Marginal employment," for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16 (a). In this case, the Veteran has a combined disability rating of 90 percent for his service- connected disabilities from May 17, 2013, with two disabilities rated at 40 percent or more. As such, the Veteran currently meets the scheduler eligibility requirements for TDIU. 38 C.F.R. § 4.16 (a). The Board finds, however, that additional information is required regarding the impact of his service-connected disabilities, alone or in combination, on his occupational functioning. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant private and/or VA treatment records. Should such exist, associate such with the claims file. 2. Provide the Veteran with appropriate notice of VA's duties to notify and assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 3. Then, after undertaking any other necessary development, adjudicate the inferred TDIU claim. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative, and give them an appropriate time to respond before returning the matter(s) to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, Associate 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.