Citation Nr: 1343331 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 02-04 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased evaluation on an extraschedular basis for left ankle disability, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Michael Leonard, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from November 1976 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) from January and March 2001 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan. This matter was mostly recently before the Board in March 2012 when the Board remanded it for further development. In electronic mail dated in March 2013, the Veteran requested a 100 percent disability rating dating back to June 2000. Historically, in a January 2011 decision, the Board, in part, denied the Veteran's claim of entitlement to an evaluation in excess of 20 percent prior to June 25, 2002. The parties, in a September 2011 Joint Motion for Remand (JMR), moved for the United States Court of Appeals for Veterans Claims (Court) "not to disturb this determination [with regard to the rating prior to June 25, 2002] as the Appellant has agreed not to appeal this issue. Accordingly, the appeal of this latter claim should be considered abandoned." In a September 2011 Order, the Court dismissed the appeal as to the issue of an increased rating from June 25, 2002. Thus, the issue of a higher rating prior to June 25, 2002 is not for appellant consideration. In an August 2012 decision, the RO granted TDIU effective from June25, 2011. The Veteran filed a notice of disagreement as to the effective date and the RO issued a Statement of the Case (SOC) in September 2013. A substantive appeal has not yet been received by VA; thus, this issue is not for adjudication at this time. Moreover, the effective date for TDIU could be affected by the remanded issue. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran is service connected for residuals of a left ankle fracture with history of infection (osteomyelitis), to include posttraumatic arthritis. The rating period on appeal is from June 25, 2002, for which the Veteran's disability is rated as 40 percent disabling. The maximum rating under Diagnostic Codes (DCs) 5270-5274, the codes for the ankle, is 40 percent for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. Not only is 40 percent the maximum rating for the ankle, but it is also the maximum rating allowable for the combined ratings for disabilities below the knee under the amputation rule. 38 C.F.R. § 4.68. In addition, ratings of 10 percent, 20 percent, and 30 percent for osteomyelitis, rated under DC 5000, are to be combined with the ratings of ankylosis and are subject to the amputation rule. A 60 percent rating, as it is based on the constitutional symptoms, is not subject to the amputation rule. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extra-schedular disability rating would be warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). In October 2002, the Veteran testified at a Board hearing that, as a physician's assistant, he was on his feet all day, and by the end of the day could not walk. He reported that he had missed approximately five to seven days of work that year due to pain, swelling, and inability to walk. He also testified that he would have to leave work early because of the pain. An April 2004 VA bone scan confirmed osteomyelitis of the left ankle. A 2004 VA examination report reflects that the Veteran reported difficulty on the job (as a tavern owner) with walking, weight bearing, stocking, waiting tables, cooking, unloading stock, or driving a delivery truck on "bad days." The examiner stated that "the left ankle disability, by itself, causes marked interference with employment. Rationale: The veteran has untreated active osteomyelitis of the left ankle. Treatment for this condition can include long term, high potency oral or intravenous antibiotic therapy, confinement with bed rest, hospitalization, and surgical interventions. Joint destruction within the left ankle could continue to worsen if the condition remains untreated. The veteran's general state of health could decline if the condition remains untreated. The treating physician may preclude continuous daily weight bearing, such as is required by a working individual." With regard to "marked interference," the opinion of the examiner indicates that it was speculative in nature based on possible future treatment and outcomes. In October 2005, the same VA examiner stated that the Veteran had active myelitis of the left ankle. The Veteran's joint was assessed as "ankylosed and stable and without pain on aggressive range of motion testing." The examiner also noted that the Veteran stated that he has pain on ambulation; however, upon observation, "there appeared to be no pain on ambulation." It was also noted that the Veteran continued as a tavern owner/manager and denied being on Social Security disability. The examiner stated that the Veteran related "no change in his employment or occupational functioning." "[The Veteran] explicitly states that his left ankle condition has not changed since his last compensation examination. There is no documentation in the veteran's VA medical records or his claims file that contradicts these statements. Therefore, this examiner can only conclude that there is no marked interference on his employment due to the veteran's left ankle condition." An October 2005 VA record reflects that the Veteran reported chronic ankle pain. With regard to osteomyelitis of the ankle, the examiner noted that the Veteran "refused treatment wants to pursue litigation." An April 2006 VA clinical record reflects that the Veteran reported that his left ankle pain "occasionally bothers him." An April 2010 VA examination report reflects that the Veteran used a cane intermittently or occasionally. His left ankle had pain at rest. It was noted that the Veteran had an odd gait and his heel wear on the shoe did not appear consistent with his gait. The Veteran reported that he was self-employed as a restaurant owner and had lost two weeks of work in the last 12 month period because of pain. It was noted that there was "no clinical evidence of osteomyelitis at this time." July 17, 2011 Urgent Care Discharge record reflects a diagnosis of osteomyelitis of the left ankle. The Veteran was prescribed Cipro, Vicodin, Motrin, and to be off work until re-evaluation. An Aetna Physician's statement reflects that he had osteomyelitis of the left ankle and was restricted from work until September 16, 2011. An August 2011 Pain Questionnaire reflects that the Veteran reported pain that lasts most of day and which interferes with sleep. A January 2012 record from Dr. C. A. reflects "MRI left ankle - Diagnosis -severe chronic osteomyelitis". In correspondence dated in January 2012, the Veteran asserted that his last date of work was in June 2011 and he was no longer able to work due to his service-connected disabilities. Social Security Administration (SSA) records also reflect a disability date in June 2011. An October 2012 VA examination report reflects the opinion of the examiner that the functioning of the ankle is so diminished that amputation with prosthesis would equally serve the Veteran. The examiner stated that the "Veteran does not have function of the left ankle. The ankle is fixed in 20 to 30 degrees of plantar flexion and is painful to put any weight on the left ankle. The ankle is not functional in gait. The forefoot and midfoot still function relatively normal but are effected as well secondary to the tibiotalar joint." The examiner further stated that the Veteran cannot stand for any period of time and cannot work because of pain. Based on the foregoing, and with consideration that the Veteran's pain may not be contemplated by the rating criteria for ankylosis and there is marked interference with employment, the Board finds that referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service is warranted for a determination as to whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake 22 Vet. App. 111 (2008). The Board is precluded from assigning an extraschedular rating in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Refer the issue of entitlement to a rating in excess of 40 percent for the Veteran's left ankle disability for the period from June 25, 2002 to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration 2. If the benefit sought on appeal is not granted, issue a supplemental statement of the case and provide the Veteran and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration as warranted. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).