Citation Nr: 1312384 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 07-27 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an increased rating for a chronic left ankle sprain, status post-left ankle repair, to include a rating in excess of 20 percent prior to May 13, 2010, and a rating in excess of 40 percent as of July 1, 2011. 2. Entitlement to a rating in excess of 10 percent for peripheral nerve damage, status post-left ankle repair. 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from March 1956 to July 1956 and from October 1957 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, denying the Veteran's claim for increased disability evaluations. These claims were previously remanded by the Board in December 2010 for further evidentiary development. During the pendency of this claim, the Veteran was assigned a temporary evaluation of 100 percent for his chronic left ankle sprain, status post-left ankle repair, effective as of January 7, 2011. A 40 percent disability evaluation was subsequently assigned, effective as of July 1, 2011. Since this grant did not constitute a full grant of the benefit sought on appeal, this claim remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran has alleged occupational impairment because of his service-connected disabilities. In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant: (1)submits evidence of medical disability, (2) makes a claim for the highest possible rating for the disability, and (3) submits evidence of unemployability due to the disability, an informal claim is raised under 38 C.F.R. § 3.155(a) for a total disability rating based on individual unemployability (TDIU). And as the United States Court of Appeals for Veterans Claims (Court) more recently explained in Rice v. Shinseki, 22 Vet. App. 447 (2009), if the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim. VA's Office of General Counsel also has indicated that remanding the derivative TDIU claim does not preclude the Board from going ahead and deciding the claim for a higher rating for the disability that formed the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). The issue of entitlement to TDIU benefits on an extraschedular basis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to May 13, 2010, the Veteran's left ankle disability was manifested by marked limitation of motion, pain and weakness; it was not manifested by ankylosis. The ankle was also manifested by superficial well-healed scarring that was not tender and did not result in functional impairment. 2. As of July 1, 2011, the Veteran's left ankle disability has essentially been ankylosed due to a surgical fusion of the bones. The ankle is also manifested by superficial well-healed scarring that is not tender and does not result in functional impairment. 3. The Veteran's neurological impairment of the left ankle has been manifested by symptomatology that is most appropriately characterized as mild, resulting in impaired sensation due to feelings of numbness and "pins and needles," as well as diminished or absent reflexes; it has not been manifested by symptomatology of such severity to be more appropriately characterized as "moderate." 4. Evidence of the Veteran's potential unemployability due to his service-connected left ankle disabilities is of record. 5. Because the Veteran currently does not meet the schedular criteria for a TDIU, the matter should be referred to the Director, Compensation and Pension Service, for consideration of entitlement to a TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an evaluation in excess of 20 percent for residuals of a left ankle sprain, status post-surgery, prior to May 13, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2012). 2. The criteria for establishing entitlement to an evaluation in excess of 40 percent for residuals of a left ankle sprain, status post-total fusion, as of July 1, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5270 (2012). 3. The criteria for establishing entitlement to a disability evaluation in excess of 10 percent for peripheral nerve damage of the left ankle have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8521 (2012). 4. The criteria for referral of a claim of entitlement to a TDIU on an extraschedular basis to the Director, Compensation and Pension Service, have been met. 38 C.F.R. § 4.16(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 556 U.S. 396 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). A letter provided to the Veteran in August 2006 notified him of the need to demonstrate a worsening in his overall disability and it provided him with general notice on how disability ratings and effective dates were assigned. While the letter did not specifically notify the Veteran of a need to demonstrate how his disability has impacted his employment, no prejudice has been demonstrated as this matter was fully discussed and considered by the VA examiner of July 2011. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received VA medical examinations in September 2006, November 2006 and July 2011, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. VA treatment records from as recently as September 2012 have been electronically associated with the Veteran's electronic file (Virtual VA). Copies of private treatment records have also been associated with the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Board finds there has been substantial compliance with its December 2010 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) scheduled the for a VA examination that considered both the Veteran's orthopedic and neurologic symptomatology. The AMC later issued a rating decision and a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2011). 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). See also 38 C.F.R. §§ 4.1, 4.2 (2011). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Relevant Facts The record reflects that the Veteran underwent surgery of the left ankle in June 2005. A follow-up treatment record from October 2005 reflects complaints of left ankle stiffness without pain. The Veteran was noted to be independent with all functional mobility and he ambulated with a straight cane. Range of motion testing revealed dorsiflexion to 13 degrees, plantar flexion to 38 degrees, inversion to 25 degrees and eversion to 12 degrees. However, the Veteran did report numbness in the left foot since the surgery. There were areas of absent sensation to monofilament testing around the malleolus. The Veteran was noted to have decreased range of motion and strength in the left ankle post surgery. The Veteran was afforded a VA examination of the left ankle in January 2006. The Veteran reported that he continued to have ongoing problems with his left ankle, with increased pain and a sensation of tightness since the surgery. He also endorsed flare-ups at least once per day, lasting a few hours. He also endorsed symptoms of stiffness and instability, but he denied any weakness, swelling, heat, redness or locking of the ankle. The Veteran used a cane but he did not have an ankle brace at this time. Examination revealed some soft tissue swelling and bony enlargement of the left ankle. There was also a well-healed surgical scar on the lateral superior aspect of the left ankle. The ankle demonstrated stability to stress at this time. Range of motion testing revealed dorsiflexion to 10 degrees and plantar flexion to 30 degrees. There was pain with motion. Achilles reflex was barely elicited and sensory testing revealed deficiencies. The Veteran was diagnosed with a chronic left ankle sprain, status post left ankle repair in June 2005, with residual pain, stiffness and symptoms consistent with peripheral nerve damage distal to the ankle. The Veteran was seen at the VA orthopedic clinic in March 2006. The Veteran reported that his ankle was not worse than it was prior to his surgery. Examination revealed a positive anterior drawer sign. The ankle was also tender laterally over a U-shaped incision. Peripheral pulses were intact and sensation to pinprick was symmetric. X-rays revealed some tibiotalar degenerative osteoarthritis. A diagnosis of left ankle instability was assigned at this time. The Veteran was afforded an additional VA examination of the left ankle in September 2006. The Veteran reported symptoms of giving way, instability, pain and stiffness. It was noted that he could stand for 15 to 30 minutes and that he could walk approximately one-quarter of a mile. However, the examination report reflects that the Veteran denied flare-ups at this time. The Veteran's gait was noted to be antalgic. Range of motion testing revealed dorsiflexion to 10 degrees and plantar flexion to 20 degrees. Pain was noted to begin at 10 degrees. There was also evidence of joint instability. The Veteran was diagnosed with left ankle arthritis. An additional VA examination was performed in November 2006. The Veteran reported chronic pain and sensitive skin along the area of his ankle and his lateral left foot. He reported constant pain since the surgery. He also reported a chronic sensation of pins and needles in the entire left foot. The Veteran also described left ankle weakness. There were flare-ups with certain activities, such as walking more than a hundred yards or on an uphill slope. The Veteran had a brace for the left ankle and he used a cane to assist with ambulation. However, he was independent in his activities of daily living, although he did require assistance with yard work. Examination revealed tenderness to palpation along the 10 centimeter (cm) well-healed scar and along the anterior ankle joint and the lateral malleolus. There was also positive anterior drawer on the left ankle. Pedal pulses were 1+ but deep tendon reflexes (DTRs) were not elicited at the Achilles or the patella, bilaterally. Sensation was intact but the Veteran reported a reduction in sensation along the left lateral foot and ankle and the right leg. Strength was 5/5, with the exception of left ankle dorsiflexion being 4/5. The Veteran was unable to stand on his toes but he could slightly stand on his heels while holding the examination table. There was also some evidence of muscle atrophy in the left lateral foot. Range of motion testing revealed dorsiflexion to 10 degrees and plantar flexion to 40 degrees with some tenderness. The examiner indicated that there was objective evidence of pain on motion, weakness and instability. The painful motion and reduced range of motion and weakness could significantly limit the functional ability during flare-ups or when the joint was repeatedly used with an additional loss of range of motion of 5 to 10 degrees. Diagnoses of osteoarthritis of the left ankle and multiple sprains of the left ankle, status post surgical repair, with residual weakness, reduced range of motion and neuropathy of the superficial branch of the common peroneal nerve were assigned at this time. According to a March 2008 VA outpatient treatment record, the Veteran's pain and instability of the left ankle had not changed appreciably since the last year. He reported that the ankle gave out on uneven terrain and that he wore an Arizona brace. An X-ray of the left ankle taken in April 2010 revealed severe osteoarthritis involving the ankle joint and mild osteoarthritis involving the subtalar joint. It was recommended that the Veteran undergo an ankle fusion, as this was the only surgical intervention that may help him. The Veteran was noted to have severe limitation of motion of the ankle at this time with flexion to 10 to 15 degrees and extension to 5 degrees. The record reflects that the Veteran subsequently underwent a left ankle fusion in May 2010. According to a December 2010 VA pre-operative assessment, the Veteran was status post-left ankle fusion. He was scheduled for another surgical procedure in January 2011. A January 2011 VA record reflects that while the Veteran previously underwent a fusion of the left ankle in May 2010, he since sustained a twisting injury of the ankle resulting in increased pain. A revision of his previous left fusion surgery was performed in January 2011. The Veteran was scheduled for an additional VA examination of the left ankle in January 2011. This examination was cancelled, however, due to the Veteran's recent surgery. The Veteran was then rescheduled for a VA examination of the left ankle in July 2011. It was noted that prior to his surgery of May 2010, the Veteran was experiencing increasing problems with instability and walking. He underwent a left ankle fusion in May 2010, but he subsequently fell at home, breaking one of the screws. Surgery was performed in January 2011 to correct this issue. The Veteran was presently wearing orthopedic shoes. The Veteran reported a history of a pins and needles sensation in his lower extremity with loss of strength in the left calf. The examiner noted that this occurred slowly over the years due to disuse. He also described a tingling sensation across all of the toes with a feeling of numbness. It was noted that since his last fusion, he essentially had no foot motion so weakness was difficult to evaluate. The Veteran also reported that he had some residual pain in the ankle area and heel area of the left foot, post-surgery, but it was not as severe as it was prior to his last surgery. There was no dramatic tenderness, but the Veteran reported that he was unable to stand independently without some form of support. He was still only able to stand for some 5 to 10 minutes before developing pain. The Veteran also used Canadian crutches to assist with ambulation. The Veteran reported that he had been in a wheelchair since the May 2010 surgery until approximately 2 months earlier. He denied any specific flare-ups, but did endorse some increased pain and swelling if he was on his ankle for a longer period and walked too much. Examination revealed well-healed surgical scars of the ankle that were not painful or tender. They also did not appear to impact any function. The left foot was noted to be toed out some 30 to 35 degrees. There was some generalized swelling around the left ankle with loss of definition of the lateral and medial malleoli with no pitting edema or obvious effusion. There was mild tenderness to palpation. The ankle was surgically ankylosed in a neutral position with the foot at 90 degrees to the ankle. There was no motion in any plane of movement. The left forefoot was abducted to 30 degrees with relationship to the midline of the body with the upper extremity in a straight anterior posterior position. The examiner explained that the Veteran's left ankle was ankylosed in dorsiflexion between 0 and 10 degrees. A neurological evaluation revealed altered sensory perception to filament and sharp sensation with some hyperesthesia and tingling precipitated by touching all of the toes and the dorsum of the foot. Reflexes could not be tested due to the ankle fusion, and motor testing revealed weakened plantar flexion of the left great toe. There was also atrophy of the left calf muscle. The examiner concluded that the Veteran did not have complete paralysis of the left foot as he was able to dorsiflex and plantar flex the toes. However, there was no way to evaluate for paralysis of the foot as a whole as there was no motion due to the complete ankylosis. The examiner diagnosed the Veteran with residuals of a left ankle sprain, status-post left ankle repair post-ankle fusion in May 2010 with failure of fusion and subsequent revision and total fusion of the left ankle in January 2011. The Veteran was also diagnosed with peripheral nerve damage status post-left ankle repair, primarily resulting in sensory abnormalities involving the superficial branches of the popliteal nerves in the foot. Finally, disuse atrophy of the left calf muscle as secondary to the residuals of left ankle surgery was assigned. The examiner concluded that these conditions had a significant effect on the Veteran's daily activities. The Veteran also reported that he was forced to resign from his position since his May 2010 surgery and that he was never able to return to work. According to a February 2012 VA treatment record, the Veteran was slowly advancing with his activity. He noted pain at the upper screw location and foot numbness overall. It was noted that the Veteran was now able to go on short walks and grocery shop with his wife. A February 2012 X-ray noted a slight narrowing of the fracture site with sclerosis around the fracture. It was noted that these findings suggested progressive healing without bony fusion. There was also loosening of the tibial fixation screw. The Veteran declined any further surgical intervention. A March 2012 VA treatment record reflects that sensation was intact to both feet. A June 2012 record reflects that the Veteran continued to have dorsiflexion in the left ankle due to chronic malunion. A lace-up ankle brace was provided to the Veteran at this time. Chronic Left Ankle Sprain The Veteran was originally granted service connection for a chronic left ankle sprain in a February 2006 rating decision. A 20 percent disability evaluation was assigned under Diagnostic Code 5271, effective as of January 12, 2005. The Veteran did not submit a timely notice of disagreement to this decision. In August 2006, VA received a claim from the Veteran seeking a higher disability evaluation. While this claim was received within one year of the February 2006 rating decision, the Veteran failed to assert any disagreement with the previous rating decision of February 2006. As such, it was properly treated as a claim for increase rather than as a notice of disagreement. See 38 C.F.R. § 20.201 (a valid notice of disagreement must be in writing, and must express disagreement or dissatisfaction with a prior rating decision within one year from the date of being notified of that decision). This claim was subsequently denied in a November 2006 rating decision. A timely notice of disagreement was received from the Veteran in December 2006, but the assigned ratings were continued in a March 2007 statement of the case. VA received an appeal to the Board (VA Form 9) in August 2007 - less than one year after the issuance of the November 2006 rating decision. This claim was subsequently remanded by the Board in December 2010. During the pendency of this claim, the Veteran was granted a temporary evaluation of 100 percent based on surgical or other treatment necessitating convalescence as of May 13, 2010. A 40 percent disability evaluation was assigned as of July 1, 2011. Therefore, the issues on appeal are entitlement to a disability evaluation in excess of 20 percent, prior to May 13, 2010, and entitlement to a disability evaluation in excess of 40 percent as of July 1, 2011. The Board notes that the March 2012 Supplemental Statement of the Case (SSOC) indicates that there is no appeal after May 13, 2010, because the Veteran was in receipt of the maximum schedular evaluation of 40 percent as of July 1, 2011. However, this assertion is not correct and the Board must consider whether a referral for consideration of an extraschedular rating is warranted as of July 1, 2011. With that having been said, the Board finds that the preponderance of the evidence of record demonstrates that a disability evaluation in excess of 20 percent for the residuals of a left ankle sprain, prior to May 13, 2010, is not warranted. This disability was rated under Diagnostic Code 5271 prior to May 13, 2010. Under this code, a 10 percent disability evaluation is warranted for moderate limitation of motion of the ankle and a maximum disability evaluation of 20 percent is warranted for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a. Therefore, the Veteran was in receipt of the maximum schedular evaluation under Diagnostic Code 5271 prior to May 13, 2010. A higher evaluation is warranted for ankylosis of the ankle under Diagnostic Code 5270. See id. Under this code, a 30 percent disability evaluation is warranted for ankylosis of the ankle in plantar flexion, between 30 degrees and 40 degrees, or, in dorsiflexion between 0 degrees and 10 degrees. The maximum evaluation of 40 percent is warranted when there is evidence of ankylosis of the ankle in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. The Veteran's January 2006 VA examination report reflects that he was still capable of motion in the left ankle, with dorsiflexion to 10 degrees and plantar flexion to 30 degrees. Motion was also noted upon examination in September 2006 and November 2006. Finally, while the Veteran was noted to have severe limitation of motion upon evaluation in April 2010, he was still capable of motion of the ankle to some degree. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. See Shipwash v. Brown, 9 Vet. App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (27th ed. 1988) at 91. Therefore, the Board finds that there is no basis for a finding of ankylosis of the left ankle joint, prior to May 13, 2010, as the Veteran was capable of some degree of motion. There is no other applicable diagnostic code that would permit a rating in excess of 20 percent in this case. See 38 C.F.R. § 4.71a. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of their normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. In the present case, while there certainly is evidence of left ankle pain with a significant reduction in motion prior to May 13, 2010, the Veteran still managed to maintain some range of motion. There is simply no evidence, prior to the surgical fusion of the left ankle on May 13, 2010, of symptomatology so severe as to functionally render the ankle ankylosed. According to the November 2006 VA examiner, pain and weakness could significantly limit the functional ability during flare-ups. However, the examiner estimated an additional loss of only 5 to 10 degrees of motion. As such, even when considering the DeLuca criteria, the preponderance of the evidence demonstrates that a higher disability evaluation for limitation of motion is not warranted at any time prior to May 13, 2010. Likewise, as already noted, a 40 percent disability evaluation is the highest available schedular rating for impairment of the left ankle joint. As such, a higher schedular evaluation is not available as of July 1, 2011. In Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Nonetheless, the Board must consider whether referral for consideration of an extraschedular rating, prior to May 13, 2010, and as of July 1, 2011, is warranted. The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Prior to May 13, 2010, the Veteran's symptoms consisted of pain with significant limitation of motion of the left ankle. However, a 20 percent disability evaluation is meant to compensate a Veteran for "marked" limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. While the Veteran was noted to have additional symptoms, such as numbness, he has been awarded a separate disability evaluation for this symptomatology under a separate diagnostic code. The rating schedule also allows for a higher disability evaluation upon a worsening of symptomatology in this case. See id, at Diagnostic Code 5270 Therefore, the rating criteria reasonably described the Veteran's disability prior to May 13, 2010, and referral for consideration of an extraschedular rating is not warranted. As of July 1, 2011, the Veteran's left ankle has been surgically fixated in dorsiflexion between 0 and 10 degrees. The Veteran was also experiencing less pain in the ankle than he was prior to his surgical intervention. Diagnostic Code 5270 is meant to compensate a Veteran for complete fixation of the ankle joint. See 38 C.F.R. § 4.71a. Therefore, the Veteran's symptoms are considered by the rating criteria. While a higher disability evaluation is not available for limitation of motion of the ankle, the evidence of record fails to demonstrate that the Veteran's symptomatology as of July 1, 2011, is so severe as to fall outside of the rating schedule. The Veteran did report a decrease in pain and weakness could not be found due to the total fusion of the ankle. As such, the rating criteria reasonably describe the Veteran's symptomatology and referral for consideration of an extraschedular rating, as of July 1, 2011, is not warranted. The Board recognizes that the Veteran believes he is entitled to a higher disability evaluation for his left ankle. In a September 2007 statement, the Veteran asserted that his left ankle was always swollen and that it was fused. He indicated that it was very hard to walk and that his ankle would not flex when he walked. While the Board is very sympathetic to the Veteran's situation, the objective evidence of record does not support a finding of ankylosis prior to May 13, 2010. An objective evaluation of the left ankle in April 2010 demonstrated that the ankle was not fused and that it was in fact capable of at least some degree of motion. As such, the Veteran's assertions of a fused ankle prior to May 13, 2010, fail to demonstrate that a higher disability evaluation is in fact warranted. Finally, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to a separate disability evaluation for scarring of the left ankle. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. 38 C.F.R. § 4.118. According to the July 2011 VA examination report, the Veteran's scarring was well-healed and resulted in no skin break down or functional effect. As such, a compensable disability evaluation is not warranted under Diagnostic Code 7801. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Id. According to the November 2006 VA examination, the Veteran had a 10 cm U-shaped scar. While the July 2011 VA examination report does not reflect a measurement of the Veteran's scarring, there is no evidence to suggest is it 929 square cm or more in size. As such, a compensable disability evaluation is not warranted under Diagnostic Code 7802. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Id. The Veteran's scarring has been described as well-healed in this case with no evidence of skin breakdown. Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. Id. While the November 2006 VA examiner notes that there was tenderness with palpation along the Veteran's well-healed scar, the evidence does not suggest that the scar itself was tender. The July 2011 VA examiner explained that the Veteran's surgical scars were all well-healed and not painful or tender. Finally, Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. Again, the July 2011 VA examiner noted that the Veteran's scars did not appear to affect any function. As such, a separate compensable disability evaluation for scarring of the left ankle is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an increased disability evaluation for the residuals of a left ankle sprain, status post ankle repair, to include a rating in excess of 20 percent prior to May 13, 2010, and a rating in excess of 40 percent as of July 1, 2011, must be denied. Peripheral Nerve Damage The Veteran was originally granted service connection for peripheral nerve damage of the left ankle in a February 2006 rating decision. A 10 percent disability evaluation was assigned under Diagnostic Code 8521, effective as of June 3, 2005. The Veteran did not appeal this decision. In August 2006, VA received a claim from the Veteran seeking a higher disability evaluation. This claim was denied in a November 2006 rating decision. A timely notice of disagreement was received by VA in December 2006. The 10 percent disability evaluation was continued in a March 2007 statement of the case, which the Veteran appealed to the Board in August 2007. Having considered all of the evidence of record, the Board finds that the preponderance of the evidence demonstrates that a disability evaluation in excess of 10 percent for peripheral nerve damage of the left ankle is not warranted at any time during the pendency of this claim. The Veteran's disability is rated under Diagnostic Code 8521. Under this code, a 10 percent disability evaluation is warranted for incomplete paralysis of the external popliteal nerve that is mild in severity. 38 C.F.R. § 4.124a. A 20 percent disability evaluation is warranted for incomplete paralysis that is moderate in severity and a 30 percent disability evaluation is warranted for incomplete paralysis that is severe in severity. Id. The maximum evaluation of 40 percent is warranted when there is evidence of complete paralysis of the nerve with foot drop and slight droop of the first phalanges of all toes. Id. According to an October 2005 treatment record, the Veteran had some numbness with decreased strength in the left foot and ankle. The Veteran also described a sensation of tightness upon examination in January 2006. Examination barely elicited the Achilles reflex and sensory testing revealed deficiencies. However, a March 2006 VA treatment record notes that sensation to pinprick was symmetric. During his November 2006 VA examination, the Veteran described a chronic sensation of pins and needles in the entire left foot. Examination revealed the absence of reflexes with normal strength, aside from slightly diminished strength with left ankle dorsiflexion. Sensation was deemed to be intact, although the Veteran reported a reduction in sensation along the left lateral foot and ankle. Upon examination in July 2011, the Veteran reported a history of pins and needles sensation with a feeling of numbness. Evaluation revealed altered sensory perception to filament and sharp sensation with some hyperesthesia and tingling precipitated by touching all of the toes and the dorsum of the foot. Reflexes could not be tested, but mot testing revealed weakened plantar flexion of the great toe. The examiner concluded that the Veteran suffered from peripheral nerve damage primarily resulting in sensory abnormalities. Finally, a March 2012 VA treatment record reflects that sensation was intact to both feet. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. According to the July 2011 VA examiner, the Veteran's peripheral nerve damage primarily resulted in sensory abnormalities. The Veteran has historically described sensations of numbness and a sensation of pins and needles in the left lower extremity. While the Veteran has been found to have diminished reflexes during the pendency of this claim, the evidence of record does not reflect that this has resulted in a disability that is more appropriately characterized as "moderate" in severity. The November 2006 VA examination report reflects that the Veteran was still independent in his activities of daily living. Finally, the April 2010 surgical consultation only reports that the Veteran's injury resulted in numbness of the foot. As such, the preponderance of the evidence of record demonstrates that the Veteran's neurologic impairment has been primarily sensory in nature, and is more appropriately characterized as "mild" rather than as "moderate" throughout the pendency of this claim. As such, a disability evaluation in excess of 10 percent is not warranted. In reaching the above decision, the Board has taken into consideration the finding of atrophy of the muscle of the left calf. However, in the present case, it is not shown that the atrophy of the left calf muscle has resulted in any impairment apart from the functioning of the left ankle itself. The Veteran admitted upon examination in July 2011 that he had not experienced any weakness of the thigh muscles affecting his hip or knee mobility. A separate rating for muscle atrophy would, therefore, violate the rule against pyramiding. See 38 C.F.R. § 4.14. Even if muscle atrophy were separately rated, however, the July 2011 VA examination report reflects that the Veteran's atrophy of the left calf muscle was only "slight" in severity. This would not warrant a compensable disability evaluation under Diagnostic Code 5311. See 38 C.F.R. § 4.73. The examiner found a difference in size of 1.5 cm and there was no mention of any specific disability resulting from this atrophy. The Board has again considered whether referral for extraschedular consideration is warranted. See 38 C.F.R. § 3.321(b). However, the Veteran's symptoms associated with his service-connected neurological impairment of the left lower extremity have included sensations of numbness and pins and needles, as well as reduced or absent reflexes. However, such impairment is contemplated by the rating criteria. See 38 C.F.R. § 4.124a, Diagnostic Code 8521. This code allows for a higher disability evaluation upon a showing of worsening symptomatology. Therefore, the rating criteria reasonably describe the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Finally, the Board has again considered the Veteran's assertions that he is entitled to a higher disability evaluation. However, the Veteran has not provided VA with any statement or evidence demonstrating that his neurological impairment alone has been more than "mild" in severity. While he has consistently complained of sensory deficiencies, these symptoms fail to demonstrate that a higher disability evaluation of 20 percent is in fact warranted. As such, the Veteran's assertions of entitlement to a higher disability evaluation fail to demonstrate that a disability evaluation in excess of 10 percent has been warranted at any time during the pendency of this claim. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a disability evaluation in excess of 10 percent for peripheral nerve damage of the left ankle must be denied. TDIU As discussed in the introduction, a claim of entitlement to TDIU benefits is inherently part of the increased rating claim currently on appeal. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In reaching such a determination, 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 in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2011). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Presently, the Veteran is service-connected for disabilities of the left ankle for a combined evaluation of 50 percent. As such, the Veteran does not meet the percentage requirements laid out in 38 C.F.R. § 3.340. Nonetheless, entitlement to a TDIU on an extraschedular basis may be considered by the Director of the Compensation and Pension Service when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, even though percentage requirements are not met, with consideration given to the Veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). In determining whether the Veteran is entitled to a TDIU rating, neither nonservice-connected disabilities or advancing age may be considered. 38 C.F.R. § 4.19. According to the July 2011 VA examination report, the Veteran had worked as a building inspector until he was forced to quit his job at the time of his surgery in May 2010. The Veteran told the examiner that he was never able to go back to work and that he had to resign his position this past June due to his ankle problems. The Veteran stated that due to his ankle disability, he was unable to walk through buildings anymore which was a large part of his duties as a building instructor. When there is plausible evidence that a Veteran is unable to secure and follow a substantially gainful occupation, without any affirmative evidence to the contrary, a Veteran's case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the Compensation and Pension Director. Based on the evidence discussed above, the Board finds that it is clear that such referral is warranted in this case. At this point, the Board will not make a decision regarding the claim for TDIU under 38 C.F.R. § 4.16(b), as this is impermissible based upon the governing regulations and case law. See Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, the Board finds that this matter should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration under 38 C.F.R. § 4.16(b). To this extent only, the claim is granted. (CONTINUED ON NEXT PAGE) ORDER The claim of entitlement to an increased evaluation for a chronic left ankle sprain, status post-left ankle repair, to include a rating in excess of 20 percent prior to May 13, 2010, and a rating in excess of 40 percent as of July 1, 2011, is denied. The claim of entitlement to a rating in excess of 10 percent for peripheral nerve damage, status post-left ankle repair is denied. Referral of a claim of entitlement to a total disability rating based on individual unemployability (TDIU) to the Director, Compensation and Pension Service, for extraschedular consideration is warranted. REMAND As discussed above, further evidentiary development is necessary before appellate review may proceed on the Veteran's claim of entitlement to a TDIU, including on an extraschedular basis. Specifically, this matter is referred to the Director, Compensation and Pension Service, for consideration of entitlement to a TDIU on an extraschedular basis. Accordingly, the case is REMANDED for the following action: 1. Submit the claim of entitlement to a TDIU under 38 C.F.R. § 4.16(b) to the Director, Compensation and Pension Service, for extraschedular consideration. The RO/AMC is advised to follow the procedures outlined in 38 C.F.R. § 4.16(b) governing referral of TDIU claims to the Director, Compensation and Pension Service. A copy of the referral, and any reply, to include the Director's decision, should be included in the claims file. If it is determined that there is insufficient evidence of record to submit this claim to the Director (or for the Director to offer an opinion), than the Veteran should be scheduled for a VA examination before an appropriate physician to determine whether it is at least as likely as not that his service-connected left ankle disabilities alone render him unable to obtain or maintain substantially gainful employment. His claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination. A complete rationale for any opinion offered must be provided. 2. Review all evidence received since the last prior adjudication and readjudicate the Veteran's TDIU claim. If the determination remains unfavorable to the Veteran, then the RO/AMC should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs