Citation Nr: 1626892 Decision Date: 07/06/16 Archive Date: 07/14/16 DOCKET NO. 08-23 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a sinus condition. 2. Entitlement to a disability rating in excess of 10 percent for the residuals of a right ankle sprain. 3. Entitlement to total disability rating due to individual unemployability (TDIU) to include on an extraschedular basis. ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1980 to November 1980, from June 1988 to October 1988, and from June 1989 to November 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas in September 2007 and September 2010. This matter was previously before the Board, and, in March 2010, the matter was remanded for further development. Further development in substantial compliance with the Board's remand instructions has been completed. The issue of entitlement to service connection for a sinus condition addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's ankle disability does not cause marked limitation of motion. 2. The Veteran is not unable to secure and maintain substantially gainful employment due to his service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating for an ankle disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2015). 2. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340 , 3.341, 4.15, 4.16, 4.18, 4.19 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify & Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and the Veteran has not demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, Social Security Administration (SSA) records, and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disability and contentions, and grounded their opinions in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that this matter was previously remanded in order to provide the Veteran with another VA examination to evaluate the severity of his ankle disability. The Veteran was provided with a subsequent examination in substantial compliance with the Board's remand instructions The Board notes that the Veteran's previous representative, who is no longer representing the Veteran, objected to the adequacy of the examinations of record, because he felt that VA examinations provide only an isolated snapshot of the Veteran's symptoms; and, therefore, were reportedly not reflective of his ordinary everyday life. Nevertheless, the Board finds that any additional VA examination would necessarily suffer from the same conditions that the Veteran's previous representative took issue with. Moreover, a review of the examination report shows that the examiner was apprised of the Veteran's ankle flare-ups and how activity and weather impacted the ankle. Accordingly, remanding the matter for an additional VA examination is not found to be required. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Right Ankle Sprain The Veteran contends that he is entitled to a disability rating in excess of 10 percent for the residuals of a right ankle sprain. The Veteran first filed for service connection for a right ankle sprain in August 2006, and, in September 2010, the RO granted service connection and assigned a noncompensable disability rating effective the date the claim was received. The Veteran appealed. In June 2011, the RO granted the Veteran a disability rating of 10 percent effective the date his claim was received. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Ankle disability ratings are evaluated pursuant to the following diagnostic codes: Diagnostic Code 5270 (ankylosis of the ankle); Diagnostic Code 5271 (limited motion of the ankle); Diagnostic Code 5272 (ankylosis of the subastragalar or tarsal joint); Diagnostic Code 5273 (malunion of os calcis or astragalus); and Diagnostic Code 5274 (astragelectomy). 38 C.F.R. § 4.71a. A review of the record indicates that the Veteran has not manifested ankylosis of the ankle or malunion of the os calcis or astraglus. Additionally, the Board notes that the record does not indicate that the Veteran underwent an astragelectomy. Accordingly, Diagnostic Codes 5270 and 5273 - 5274 are not raised by the record and cannot provide an adequate basis for a disability rating in excess of 10 percent. Thus Diagnostic Code 5271 is the only remaining diagnostic code that could provide a disability rating in excess of 10 percent. Under Diagnostic Code 5271, a disability rating of 10 percent is assigned when an ankle disability causes moderate limitation of motion, and a disability rating of 20 percent is assigned when an ankle disability causes marked limitation of motion. The words "moderate" and "marked," as used in Diagnostic Code 5271, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Accordingly, the Board will rely on Webster's definitions of the two terms. "Marked" means noticeable. See Webster's II New College Dictionary, 670 (1995). "Moderate" means of average or medium quantity. Id. at 704. In September 2005 the Veteran underwent an SSA consultation to determine his eligibility for social security. Though he experienced difficulty, the Veteran was able to heel walk. The Veteran was also able to stand on his toes and take a step or two. The Veteran reported experiencing pain in his feet due to old fractures and old sprains. A March 2009 VA treatment record indicates that the Veteran had a normal gait and his plantarflexion and dorsiflexion were normal. The Veteran underwent a VA examination in August 2010. The Veteran reported experiencing right ankle pain ever since his periods of service, and he indicated that it had gotten progressively worse. The Veteran claimed that he was only able to stand for 15 minutes at a time and only able to walk a few yards. The Veteran stated that he experienced severe flare-ups lasting one to two days every one to two months, and that he frequently used a cane and a crutch. The Veteran also stated that he was experiencing the following ankle symptoms: giving way; instability; pain; stiffness; weakness; and decreased seep of joint motion. The examiner found no ankle instability, tendon abnormality, or joint ankylosis. The examiner did note objective evidence of pain, but found that repetitive motion did not cause additional limitation on the Veteran range of motion following three repetitions. The Veteran's right dorsiflexion was to 15 degrees, and his right plantar flexion was to 45 degrees. The Board notes that normal dorsiflexion is to 20 degrees, and that normal plantar flexion is to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Veteran described his ankle symptoms in a December 2010 statement; asserting that his right ankle was permanently swollen, always sore, and hurt all the time. The Veteran also stated that he experienced flare-ups when the weather changed and in the winter months. The Veteran described his ankle as weak and prone to rolling under when walking depending on the terrain. The Veteran reported that he could no longer run, and he also claimed that his right ankle contributed to the loss of his last job. Finally, the Veteran indicated that his ankle had been characterized by doctors as a "floppy foot." The Veteran underwent another VA examination in May 2011. The Veteran reported similar symptoms to the symptoms reported in the previous examination. The examiner once again found that there was no ankle instability, tendon abnormality, or ankylosis. The examiner once again noted objective evidence of pain, but once again found that there was no additional limitation on the Veteran range of motion following three repetitions. The Veteran's right dorsiflexion was to 20 degrees, and his right plantar flexion was to 45 degrees. VA treatment records indicate that the Veteran sought treatment for pain management throughout the period on appeal for a number of medical issues including ankle pain. The Veteran is not entitled to a disability rating in excess of 10 percent, because the weight of the evidence does not demonstrate that his ankle disability caused marked limitation of motion. A March 2009 VA treatment record indicates that the Veteran's plantarflexion and dorsiflexion were normal. The August 2010 VA examination indicated that the Veteran had full range of motion of his right ankle, and the May 2011 VA examination indicated that the Veteran almost had full range of motion of his right ankle. Accordingly, the record is not sufficient to demonstrate that the Veteran's limitation of his right ankle is severe enough to be described as "marked" as opposed to merely moderate limitation of motion. The Board notes that in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. The Board also notes that the Veteran's previous representative, who is no longer representing the Veteran, argued that symptoms, in addition to his range of motion measurements, should be considered evidence of a functional impairment. Moreover, the Board notes that the record contains evidence of weakened movement, excess fatigability, incoordination, pain on movement, and swelling. The Board finds the evidence credible and persuasive. Nevertheless, VA took these factors into consideration when assigning the Veteran a disability rating of 10 percent, and, in fact, these symptoms provide the basis for the lower rating that has already been assigned. The weight of the evidence is not sufficient to indicate that these factors additionally limit that Veteran's motion of his ankle to a degree of severity that could be characterized as "marked" rather than moderate. For example, while the Veteran experienced pain on range of motion testing, he still demonstrated full range of motion in the ankle that was not diminished by repetitive motion testing. The Veteran is awarded a compensable rating based on the presence of symptomatology such as pain and swelling. The Board notes the Veteran's reports of pain on motion and finds them credible. Pain alone, however, is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran's right ankle disability is manifesting marked limitation of motion. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such entitlement to a disability rating in excess of 10 percent for a right ankle disability is denied. Extraschedular The Board has also considered whether referral for an extraschedular evaluation is warranted. In exceptional cases, an extraschedular rating may be provided. See 38 C.F.R. § 3.321; see also Rice v. Shinseki, 22 Vet. App. 447 (2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations 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. See Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the 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 evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation 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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). 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, Compensation and Pension 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. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment for the Veteran's ankle disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular criteria applicable to the Veteran's ankle provides for compensable ratings based on limitation of motion ranging from moderate to marked. These are broad terms that by their very nature require the Board to consider the Veteran's health holistically and globally. That is, the Board necessarily considers all of ankle related symptoms within the schedular rating criteria. The Board, therefore, finds that his ankle symptomology and impairment are more than contemplated by the schedular criteria. Moreover, because the criteria used to evaluate musculoskeletal disability, such as an ankle disability require, the Board to consider all of the Veteran's symptoms in determining whether the range of motion is functionally limited, the Board is essentially tasked with considering of all of the Veteran's ankle related symptoms within the parameters of the schedular rating that is assigned again when considering functional limitations. As described supra, these symptoms include evidence of weakened movement, excess fatigability, incoordination, pain on movement, and swelling which was taken into consideration in assigning the Veteran's current rating as well as in determining whether additional functional impairment existed. Additionally, the Board acknowledges the fact that the Veteran wears assistive devices as a result of his ankle disability. The use of these assistive devices, however, do not render the Veteran's ankle disability unique or unusual, and they do not mean that the schedular rating criteria do not adequately describe the symptoms of the Veteran's service connected disabilities, so as to trigger referral for extraschedular consideration. First, the use of an assistive device is not unexpected when a person experiences significant pain in the ankles. That is, it is not a unique or unusual result of lower extremity disabilities. Second, the use of an assistive device is not a "symptom" of the Veteran's disability; rather, it is the result of ankle symptoms such as pain and limitation of motion. In other words, the Veteran uses assistive devices because of pain in his ankles and feet, but pain is a symptom that the Board considers when determining functional loss leading to the limited range of the motion or severity of the injury contemplated by the schedular rating criteria. Accordingly, the Board finds that the Veteran's disability picture is adequately anticipated by the schedular rating criteria for the disabilities on appeal, and, therefore, the Veteran is not entitled to consideration of extraschedular rating criteria by the Under Secretary for Benefits or the Director, Compensation and Pension Service. TDIU The Veteran contends that he is entitled to TDIU. TDIU is granted when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with the veteran's education and occupational experience. 38 C.F.R. §§ 3.340 , 3.341, 4.16. 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 (1993). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A threshold requirement for eligibility for TDIU is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Veteran does not meet this criteria, because currently the Veteran has only been granted service connection for an ankle disability and has been assigned a disability rating of 10 percent. Nevertheless, claims are referred to the Director, Compensation and Pension Service for extraschedular consideration when a claimant is unemployable due to a service-connected disability but does not meet the rating schedule. The weight of the evidence, however, does not indicate that the Veteran is unemployable due to his service-connected ankle disability. The Veteran was underwent an SSA consultation in September 2005 in order to determine his eligibility for social security. The Veteran reported that he had last worked in two years prior to the SSA consultation (approximately 2003). The Veteran reported that his last position was as a mental health worker, but that prior to that he had numerous jobs; including as a truck driver and a teacher. The SSA consultation report notes symptoms of a number of disabilities for which the Veteran has not been granted service connection as well as pain in his feet and ankles. The SSA physician indicated that the Veteran was no longer suited to be a truck driver, but the SSA physician also indicated that the Veteran could be totally retrained to do some type of sedentary work. The Veteran underwent a VA examination to determine the severity of his right ankle disability in August 2010. The Veteran indicated that he was not currently employed and had not been employed for five to 10 years prior to the examination (approximately 2000 to 2005). The examiner opined that the Veteran's right ankle disability had no significant effects on his usual occupation as a teacher. The examiner further noted that the Veteran's right ankle condition prevented exercise, sports, and recreation; had severe effects on chores; had moderate effects on shopping, traveling, and dressing; and had no effect on feeding, bathing, toileting, and grooming. The Veteran underwent another VA examination to determine the severity of his right ankle disability in May 2011. The Veteran indicated that he was not currently employed and had not been employed for five to 10 years prior to the examination (approximately 2001 to 2006). The examiner opined that the Veteran's right ankle disability had significant effects on his usual occupation as a teacher and as a result he was assigned different duties. The examiner further noted that the Veteran's right ankle condition had moderate effects on exercise, sports, and recreation; and had mild effects on chores, shopping, traveling, and driving. VA treatment records from June 2006 to August 2014 indicate that the Veteran was unemployed and on disability. The records also indicated that he had been disabled since he was 43 years old, and that his prior work included being a truck driver as well as teaching people to drive trucks. The weight of the evidence indicates that the Veteran's ankle disability has significant effects on his occupation, but that these effects can be mitigated if he is assigned different duties, to include sedimentary employment. Therefore, the Veteran's right ankle disability is not preventing him from securing and maintaining sedentary employment. Furthermore, the record does not indicate that this potential sedentary employment, as limited by his ankle disability, would not be gainful employment. Accordingly, the weight of the evidence does not demonstrate that the Veteran is unable to secure and maintain substantially gainful employment, and he is not entitled to consideration of extraschedular TDIU by the Director, Compensation and Pension Service. It is also noted that while the Veteran is seeking service connection for sinusitis, the evidence of record does not suggest that even were the Veteran found to have chronic sinusitis, that it would be found, whether alone or in conjunction with his service connected ankle disability, to be so disabling as to preclude substantially gainful employment. As such, the Board is comfortable adjudicating the Veteran's TDIU claim at this juncture. ORDER An increased disability rating for an ankle disability is denied. TDIU is denied. REMAND The Veteran contends that he is entitled to service connection for sinusitis. Service treatment records indicate that the Veteran underwent sinus surgery to remove a growth from his left sinus passage in 1990. The Veteran filed a claim seeking s c for a sinus condition. A VA examination was provided in 2011, but it appeared that the examiner concluded that the Veteran did not have sinusitis. Nevertheless, treatment records and the Veteran's reports appeared to suggest that he had allergic rhinitis. Yet, it is unclear whether such a condition either began during or was otherwise caused by his military service. Accordingly, a VA examination should be provided Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from March 2015 to the present. 2. Arrange for the Veteran to undergo an appropriate VA examination to determine if he has a current sinus-related disability, and, if so, whether that disability is the result of his military service. The examiner should determine whether the Veteran currently (meaning for any distinct period of time since August 2006) has a chronic sinus disability (to include sinusitis, allergic rhinitis, or any other residual disability as a result of the 1990 surgery). If a chronic disability is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that such a condition either began during or was otherwise caused by the Veteran's military service. Why or why not? 3. Then, readjudicate the claim on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order. 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 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 2014). ______________________________________________ MATHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs