Citation Nr: 1436377 Decision Date: 08/14/14 Archive Date: 08/20/14 DOCKET NO. 12-08 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for left ankle synovitis prior to July 9, 2009. 2. Entitlement to an extension of a temporary total rating under 38 C.F.R. § 4.30 based on post-surgical convalescence from October 1, 2009. 3. Entitlement to a rating in excess of 20 percent for left ankle synovitis from October 1, 2009, to February 22, 2012. 4. Entitlement to a rating in excess of 40 percent for left ankle replacement from April 1, 2013. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 1, 2013. ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1998 to July 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2013, the RO (i) increased the disability rating for left ankle replacement to 40 percent, effective April 1, 2013, and (ii) granted TDIU, effective April 1, 2013. As neither the increase nor the effective date of TDIU satisfied the appeal in full, both issues remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Historically, the Veteran's service-connected left ankle synovitis was assigned a 20 percent rating under Diagnostic Code 5020-5271, effective July 3, 1998. On December 30, 2008, VA received the current increased rating claim. From July 9, 2009, to October 1, 2009, a temporary total rating for convalescence was assigned under 38 C.F.R. § 4.30 (2013) based on post-surgical convalescence. From October 1, 2009, to February 23, 2012, a 20 percent schedular rating under Diagnostic Code 5020-5271 was assigned. On February 23, 2012, the Veteran underwent left ankle replacement. From February 23, 2012, to April 1, 2012, a temporary total rating for convalescence was assigned. On April 1, 2012, a one-year, 100 percent rating under Diagnostic Code 5056 went into effect until April 1, 2013. From April 1, 2013, a 40 percent schedular rating under Diagnostic Code 5056 has been assigned for the postoperative left knee replacement. A TDIU went into effect on April 1, 2013. The Veteran was previously represented by a private attorney. In April 2014, prior to notification of certification of transfer of the appeal to the Board, the attorney withdrew from representation. As the RO and Veteran were notified of this action, and the action does not adversely impact the Veteran's interests, the Board finds that the attorney properly withdrew from representation. As the Veteran has not appointed another representative, the Board considers her to be self represented in this case. In a May 2012 statement, the Veteran raised the issue of entitlement to a separate rating for a surgical scar incurred during the February 2012 ankle surgery. In an April 2014 statement, the Veteran raised the issues of entitlement to special monthly compensation for permanent and total disability and aid and assistance. The Board cannot take original jurisdiction of these claims. They are referred to the RO for appropriate action. The issue of entitlement to a TDIU prior to September 3, 2010, on an extraschedular basis is REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. From December 30, 2008, to July 8, 2009, the Veteran's left ankle synovitis manifested with marked impairment of the ankle. 2. From July 9, 2009, to July 8, 2010, the Veteran suffered severe post-surgical residuals related to her service-connected left ankle synovitis. 3. From July 9, 2010, to February 22, 2012, the Veteran's left ankle synovitis manifested with marked impairment of the ankle. 4. From April 1, 2013, the Veteran's left ankle replacement has manifested with chronic residuals consisting of severe painful motion and weakness; but there is no evidence of a second ankle replacement after April 1, 2013. 5. From September 3, 2010, the Veteran's service-connected disabilities, collectively rated at 60 percent, and all arising from a common etiology, prevent her from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for left ankle synovitis from December 30, 2008, to July 8, 2009, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5020-5262 (2013). 2. The criteria for extension of the temporary total rating under 38 C.F.R. § 4.30, based on post-surgical convalescence, to July 8, 2010, have been met. 38 C.F.R. § 4.30 (2013). 3. The criteria for a 30 percent rating for left ankle synovitis from July 9, 2010, to February 22, 2012, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5020-5262 (2013). 4. The criteria for a rating in excess of 40 percent for left ankle replacement from April 1, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5056 (2013). 5. The criteria for entitlement to TDIU from September 3, 2010, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters in June 2009, January 2010, May 2010, and October 2010 satisfied the duty to notify provisions. These letters notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating, to include a temporary total rating and a total disability rating based on individual unemployability. The Veteran was informed of the need to show the impact of her service-connected ankle disability on daily life and occupational functioning. The claim was subsequently readjudicated, most recently in a February 2014 supplemental statement of the case. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; she did not identify any outstanding treatment records pertinent to the appeal. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in April 2012. VA examinations were conducted in September 2009, March 2010, April 2011, and September 2013; the record does not reflect that these examinations are inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007). Thus, VA's duty to assist has been met. Left Ankle Synovitis Prior to the Total Ankle Replacement, Including from December 30, 2008, to July 8, 2009 On December 30, 2008, VA received the current increased rating claim for left ankle synovitis, which was rated under Diagnostic Code 5020-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2013). Diagnostic Code 5020, for synovitis, refers in turn to the criteria for limitation of motion of the affected part, as degenerative arthritis (Diagnostic Code 5003). Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Limitation of motion of the ankle is rated under Diagnostic Code 5271. A 20 percent rating is the maximum schedular rating under this diagnostic code. The Board finds that Diagnostic Code 5262 provides more appropriate and favorable criteria for evaluating the Veteran's left ankle synovitis. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Under Diagnostic Code 5271, there is no legal basis for a schedular rating in excess of 20 percent on the basis of limitation of motion. Additionally, Diagnostic Code 5271 does not address the Veteran's symptoms of lateral instability. Conversely, Diagnostic Code 5262, with its more general criteria, permits a rating based on all symptomatology related to the Veteran's left ankle synovitis. Diagnostic Code 5262 provides addresses impairment of the tibia and fibula. A 30 percent rating is warranted for malunion of the tibia and fibula with a marked knee and ankle disability. A 40 percent rating, the maximum under the diagnostic code, is warranted for nonunion of the tibia and fibula with loose motion, requiring brace. 38 C.F.R. § 4.71. The criteria of Diagnostic Code 5262 more closely approximate the symptomatology of the Veteran's left ankle synovitis than the criteria under Diagnostic Code 5271. This diagnostic code also allows the Veteran to obtain a higher schedular rating than Diagnostic Code 5271. For these reasons, the Veteran's left ankle synovitis will be rated under Diagnostic Code 5262 prior to February 22, 2012. From February 22, 2012, the date of the Veteran's left ankle replacement surgery, the left ankle will be rated under Diagnostic Code 5056, which provides ratings for ankle replacement. Prior to February 22, 2012, the Veteran's left ankle synovitis manifested by limitation of motion, pain, weakness, and instability. Dr. Zelen's treatment notes show that the Veteran's instability and limitation of motion ultimately lead to an ankle reconstruction including arthroscopy and lateral stabilization on July 9, 2009. After the surgery, VA medical records, including examination reports, and the Veteran's statements show that she continued to experience limitation of motion, pain, weakness, and instability. After considering the medical findings and lay contentions, the Board finds that the evidence reveals a disability picture that more nearly approximates a marked ankle disability. Although malunion of the tibia or fibula is not shown, or impairment of areas affecting the left knee, marked ankle disability better contemplates the Veteran's disability picture. Therefore, resolving reasonable doubt in the Veteran's favor and in light of 38 C.F.R. §§ 4.3 and 4.7, the Board finds that a 30 percent rating is warranted under Diagnostic Code 5262 prior to February 22, 2012, for the periods when a temporary total rating are not in effect. The Board finds, however, that record does not warrant the next higher rating, a 40 percent, which requires nonunion of the tibia and fibula with loose motion, requiring brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The Veteran's left ankle synovitis is productive of limitation of motion, pain, weakness, and instability. As discussed above, the Veteran's ankle disability is best-rated under Diagnostic Code 5262 because it encompasses symptoms of instability. While the Veteran wears an ankle brace for ankle instability, the severity of her instability is not consistent of that required for a 40 percent rating, the maximum under the diagnostic code. Specifically, there is no lay or medical evidence of ankle deformity, malignment, or ankylosis. The Board finds the evidence of record supports a finding consistent with a marked ankle disability. Accordingly, the preponderance of the evidence is against a rating in excess of 30 percent; there is no doubt to be resolved; and a higher rating for left ankle synovitis is not warranted prior to February 22, 2012. As there is no evidence of ankylosis of the ankle, subastragalar, or tarsal joints; malunion of os calcis or astragalus; astragalectomy; or other injuries of the foot, separate ratings are not warranted under Diagnostic Codes 5270, 5272, 5273, 5274, or 5284. Entitlement to a TDIU during this period is discussed below. Left Ankle Surgery and Convalescence From July 9, 2009, to July 8, 2010 On July 9, 2009, the Veteran underwent left ankle arthroscopy and lateral stabilization. In the case of disability which is temporary in nature, such as that period of convalescence following surgery, 38 C.F.R. § 4.30 provides for temporary total disability ratings during convalescence. Temporary total ratings will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals; or (3) immobilization by cast, without surgery, a major joint. 38 C.F.R. § 4.30(a). Temporary total disability ratings are to commence on the day of hospital admission and continue for a period of one to three months from the first day of the month following hospital discharge or outpatient release. Extensions of one to three months, beyond the initial three months, may be made under 38 C.F.R. § 4.30(a)(1), (2), or (3). Extensions of one or more months up to six months beyond the initial six months period may be made only under 38 C.F.R. § 4.30(a)(2) or (3) upon the approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b). Notations in the medical record as to a veteran's incapacity to work after surgery must be taken into account in the rating of a claim brought under the provisions of 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291, 296-97 (1995). The United States Court of Appeals for Veteran's Claims (Court) has defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury" and recovery as "the act of regaining or returning toward a normal or healthy state." Felden v. West, 11 Vet. App. 427, 430 (1998). The evidence shows that the Veteran failed to return to a normal lifestyle within one year after July 9, 2009, the effective date of her temporary total rating. In May 2010, ten months after the surgery, Dr. Zelen, the physician who performed the ankle surgery, reported that the Veteran was not able to return to work due to her unsuccessful recovery. The record is replete with evidence that the Veteran experienced excruciating pain and required a wheelchair, cane, or cam-walker throughout the year following her surgery. Dr. Zelen's notation regarding the Veteran's unemployability coupled with her severe postoperative residuals warrants extension of the temporary total rating to July 8, 2010. See Seals, 8 Vet. App. at 296-97. There is, however, no legal basis for extension of the temporary total rating beyond one year. 38 C.F.R. § 4.30(b). From July 9, 2010, to February 22, 2012 Following the expiration of the Veteran's temporary total rating, on July 9, 2010, the Veteran's 30 percent rating for left ankle synovitis will resume under Diagnostic Code 5262, as discussed above. Entitlement to a TDIU during this period is discussed below. Left Ankle Replacement From February 23, 2012, to April 1, 2013 On February 23, 2012, the Veteran underwent left ankle replacement. From February 23, 2012, until April 1, 2012, a temporary total rating for convalescence was assigned. On April 1, 2012, a one-year 100 percent rating under Diagnostic Code 5056 went into effect until April 1, 2013. From April 1, 2013 From April 1, 2013, a 40 percent schedular rating under Diagnostic Code 5056 has been assigned for left ankle replacement. Under Diagnostic Code 5056, a 100 percent, the next higher rating, is only warranted during the one-year period following implantation of prosthesis. 38 C.F.R. § 4.71a. As there is no evidence of a second left ankle replacement after April 1, 2013, there is no legal basis for a higher schedular rating under Diagnostic Code 5056. As there is no evidence of ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, astragalectomy, or other injuries of the foot, a separate rating is not warranted under Diagnostic Codes 5272, 5273, 5274, or 5284. Accordingly, the preponderance of the evidence is against the claim for a rating in excess of 40 percent; there is no doubt to be resolved; and a rating in excess of 40 percent is not warranted after April 1, 2013. Extraschedular Rating The Board has also considered whether referral for an extraschedular rating is appropriate during any period of the appeal. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular rating is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular rating does not contemplate the claimant'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". Related factors include "marked interference with employment" and "frequent periods of hospitalization". 38 C.F.R. § 3.321(b)(1) (2013). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 Compensation Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Here, the Board finds that the first Thun element is not satisfied. During the pendency of the appeal, the Veteran's service-connected left ankle synovitis and left ankle replacement are manifested by signs and symptoms such as limitation of motion, instability, pain, weakness, stiffness, lack of endurance, and tenderness, which impair her ability to stand or ambulate for long periods of time or without an assistive device. See, e.g., Veteran's statement (Sept. 2010), VA examination report (Mar. 2010). These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the ankle, and by analogy the knee and leg, provide disability ratings on the basis of limitation of motion and overall impairment. See, e.g. 38 C.F.R. § 4.71a, Diagnostic Codes 5056, 5256, 5271. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested by limitation of motion, instability, pain, weakness, stiffness, lack of endurance, and tenderness. In short, there is nothing exceptional or unusual about the Veteran's left ankle disability because the rating criteria reasonably describe her disability level and symptomatology. Thun, 22 Vet. App. at 115. As the schedular rating criteria reasonably describe the severity and symptoms of the Veteran's ankle disability (characterized as left ankle synovitis and left ankle replacement), referral for extraschedular consideration is not required for any of the periods where a total rating is not in effect and the analysis stops. TDIU A total disability rating based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Additionally, a veteran may be entitled to TDIU on an extra-schedular basis if it is established that she is unable to secure or follow substantially gainful employment as a result of the effect of her service-connected disability. 38 C.F.R. § 4.16(b). The Veteran is currently service connected for the left ankle disability, a scar, and, most recently, major depressive disorder, effective September 3, 2010. For the purpose of determining whether the Veteran has "one disability" ratable at 60 percent, all three disabilities are considered one disability because they result from a common etiology (the left ankle disability). As of September 3, 2010, the combined rating is 60 percent and the Veteran meets the schedular rating requirements for a TDIU. As to employability, the Board finds that the Veteran cannot realistically obtain and maintain substantially gainful employment due to the combined functional limitations of her service-connected disabilities. Accordingly, TDIU is warranted on a schedular basis from September 3, 2010. As the Veteran does not meet the criteria for a schedular TDIU prior to September 3, 2010, the Board concludes that the issue of entitlement to an extraschedular TDIU cannot be decided without further development. This aspect of the issue is discussed in the remand section below. ORDER A 30 percent rating for left ankle synovitis from December 30, 2008, to July 8, 2009, is granted, subject to the laws and regulations governing the payment of monetary awards. Extension of the temporary total rating under 38 C.F.R. § 4.30 based on post-surgical convalescence to July 8, 2010, is granted, subject to the laws and regulations governing the payment of monetary awards. A 30 percent rating for left ankle synovitis from July 9, 2010, to February 22, 2012, is granted, subject to the laws and regulations governing the payment of monetary awards. A rating in excess of 40 percent for left ankle replacement from April 1, 2013, is denied. A TDIU from September 3, 2010, is granted, subject to the laws and regulations governing the payment of monetary awards. REMAND Prior to September 3, 2010, the Veteran was service-connected for left ankle synovitis and an associated scar, which result in a combined rating of 40 percent. Accordingly, the Veteran does not meet the criteria for a schedular TDIU under 38 C.F.R. § 4.16(a) prior to September 3, 2010. However, the record reflects that the Veteran was precluded from following or securing substantially gainful employment since May 7, 2009 on account of her service-connected disabilities. This is the date she indicated that she became too disabled to work on her May 2009 application for TDIU and the evidence of record tends to show that this is accurate. Prior to May 7, 2009, she worked as a Licensed Practical Nurse (LPN). As a result, referral to VA's Director of Compensation is needed to determine whether the Veteran is entitled to an extraschedular TDIU under 38 C.F.R. § 4.16(b) prior to September 3, 2010. Accordingly, this issue is REMANDED for the following actions: 1. Pursuant to 38 C.F.R. § 4.16(b), refer the claim for a TDIU to VA's Director of Compensation and Pension Service for extraschedular consideration for the time period prior to September 3, 2010. 2. Then, if a TDIU on an extraschedular basis is not awarded by VA's Director of Compensation and Pension Service, issue a supplemental statement of the case and return the case to the Board. The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs