Citation Nr: 1640878 Decision Date: 10/18/16 Archive Date: 11/08/16 DOCKET NO. 11-12 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to extraschedular consideration of the Veteran's left ankle disability for the periods of August 13, 2007, through April 2, 2009, and for the period beginning February 13, 2013. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) prior to July 29, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from September 1978 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran provided testimony before the undersigned Acting Veterans Law Judge in July 2012; a transcript of that hearing is associated with the claims file. This case was last before the Board in April 2016, at which time a detailed procedural history of this case was recited; that procedural history is reincorporated herein by reference. In the April 2016 Board decision, the Board awarded service connection for diabetes mellitus and granted a 20 percent evaluation for the Veteran's left ankle disability prior to April 3, 2009. The Board considers those issues to be final at this time and those issues will no longer be addressed. Also in the April 2016 decision, the Board remanded the issues of extraschedular consideration for the period of August 13, 2007 through April 2, 2009, and for the period beginning February 13, 2013, and entitlement to TDIU claim prior to July 29, 2011. Those issues have been returned to the Board at this time for further appellate review. The TDIU issue is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The schedular criteria used to assess the Veteran's left ankle disability for the periods of August 13, 2007, through April 2, 2009, and beginning February 13, 2013, are not shown to be inadequate. CONCLUSION OF LAW The criteria for a referral for an extraschedular evaluation for the Veteran's left ankle disability for the periods of August 13, 2007 through April 2, 2009 and beginning February 13, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.14 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As an initial matter, the notice and the duty to assist provisions of the Veterans Claims Assistance Act of 2000 (VCAA) were previously discussed in the May 2014 and April 2016 Board decisions with regards to the increased evaluation claims for the Veteran's left ankle disability. The Board reincorporates those discussions herein by reference with regards to the extraschedular evaluation for that issue. As noted above, the only issue remaining on appeal respecting the left ankle is entitlement to an extraschedular rating under 38 C.F.R. § 3.321 for the periods of August 13, 2007 through April 2, 2009 and beginning February 13, 2013. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1) (2015). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. 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. Second, 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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 extra-schedular rating. Id. With respect to the period of August 13, 2007, through April 2, 2009, the Board carefully considered the level of severity and symptomatology of the Veteran's left ankle disability in the April 2016 Board decision. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which he is currently evaluated. In this regard, the Veteran's current rating for that period for his left ankle is based on pain and limitation of motion of his left ankle, and specifically contemplates the functional limitations caused by that disability, to include difficulty with prolonged standing and walking. Moreover, 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, to include the resulting impact on the Veteran's physical activities such as difficulty with prolonged standing, walking, and other functional limitations and impairments. With regards to the period beginning February 13, 2013, in its August 2015 memorandum decision, the United States Court of Appeals for Veterans Claims (Court) stated that the Board failed to address the January 2014 private physician's report in its extraschedular analysis in the May 2014 Board decision. The Court further indicated that the Board limited its determination as to the second prong under Thun respecting the presence of an exceptional disability picture to solely the two factors of marked interference with employment and frequent periods of hospitalization. The Court thereafter instructed the Board to explicitly compare the criteria listed in Diagnostic Codes 5270 and 5271 (schedular analysis) and determine whether the Veteran presents an exceptional disability picture not contemplated by the rating schedule, and if so, then consider and discuss whether that exceptional disability picture, as a whole, exhibits other related factors sufficient to necessitate referral for extraschedular consideration. As an initial matter, the Board notes that it considered the January 2014 private physician's report in the May 2014 Board decision-which the Court affirmed in the August 2015 memorandum decision-with regards to the schedular criteria. Insofar as the Board stated that it only considered evidence for the extraschedular portion, such was merely a drafting error at worse or, at best, an awkward turn of phrase that was used previously in the decision with regards to schedular analysis of the period beginning February 13, 2013. In fact, the Board clearly considered evidence after February 13, 2013, in its schedular analysis of the Veteran's left ankle disability; and in its extraschedular analysis, the Board considered how that evidence was contemplated by the rating criteria during that period on appeal. Nevertheless, the Board has again reviewed the January 2014 private physician's report in conjunction with this decision. That report indicated that it was a Doctor's Checklist for Functional Impairment, which listed the Veteran's functional impairments. The Checklist and the private physician, however, failed to indicate what disabilities were discussed by that record and which disabilities caused specific impairments noted in that document. Moreover, if the Board were to consider this treatment record solely on the basis of the face of that document, the January 2014 record does not mention or discuss any left ankle disability; instead, that document only notes leg, back and eye disorders. The Board is left to conclude that the functional impairments discussed in that document are only those which are related to the noted leg, back and eye disorders, and not by the non-discussed left ankle disorder. The Board, therefore, does not find that this January 2014 record is even relevant or pertinent to the evaluation of the Veteran's left ankle disability. However, insofar as the Court has instructed that the Board must consider this document with regards to the functional impairments due to the left ankle disability-even though such a reading of that document would appear to be inconsistent with the text of that document-the noted limitation of standing, walking, carrying, pushing, pulling and climbing which could possibly be attributed to the Veteran's service-connected left ankle disability are functional impairments that are considered by the rating schedule, as discussed above. See 38 C.F.R. §§ 4.45, 4.59; Mitchell, supra. In its August 2015 memorandum decision, the Court affirmed the Board's schedular analysis of the Veteran's left ankle disability for the period beginning February 13, 2013, and the Board will therefore refrain from addressing that issue further. However, the Board does note that it denied an evaluation in excess of 30 percent for that period as the Veteran's left ankle ankylosis did not meet the criteria for a higher evaluation under the schedule. Consequently, the Board carefully considered the level of severity and symptomatology of the Veteran's left ankle disability in the May 2014 Board decision. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which he is currently evaluated for the period beginning February 13, 2013. In this regard, the Veteran's current rating for his left ankle for that period is based on pain and the presence of ankylosis of the left ankle; the Board also specifically contemplated the functional limitations caused by that disability during that period of time, to include those noted by the April 2013 Social Security Administration (SSA) decision, which are many of the same functional limitations noted in the January 2014 private physician's report. Again, the Board reiterates, as stated at least twice above, that the rating schedule specifically contemplates these types of functional impairments. See Id. Finally, insofar as the Board has been instructed by the Court to address whether the Veteran's left ankle disability is exceptional or unusual, the Board finds that there is nothing exceptional or unusual about the Veteran's disability picture or the functional impairments that result from his left ankle disability during the two periods contemplated in this decision. The Veteran's difficulty in bending, stooping, kneeling, squatting, crouching, crawling, and climbing-as noted in the April 2013 SSA decision, and the noted difficulty or inability to walk or stand for prolonged periods, or to navigate stairs or use ladders, the need to use ramps, or any other noted functional impairment discussed in either the May 2014 or April 2016 Board decisions are not exceptional. One would assume that such limitations are expected due to the type of disability present in this case. Moreover, the Board will again reiterate that these types of functional impairments, particularly functional limitations in weightbearing capacity, are expressly contemplated by the rating schedule. See Id. Therefore, as such are contemplated, these types of functional impairments cannot, by definition, be exceptional or unusual disability pictures. In summary, the Board must conclude the schedular rating criteria in this case are adequate to evaluate the Veteran's left ankle disability for the periods of August 13, 2007, through April 2, 2009, and beginning February 13, 2013. It follows that referral for extraschedular consideration is not warranted in this case. See 38 C.F.R. §§ 3.102, 3.321; Thun, supra. As a final matter, the Board clearly states that it has denied a referral in this case as the schedular criteria for the two periods contemplated in this decision are not inadequate. This is the first prong under 38 C.F.R. § 3.321 and Thun. Because the Board has not found the schedular criteria to be inadequate, analysis under the second prong-which would include the noted two factors, although would not be limited to solely those two factors-is moot; the Board has not and does not in this decision purport to consider this second prong, because the Board need not reach that prong as it has found the schedular criteria to be adequate. Also considered by the Board is whether the collective effect of his other service connected disabilities warrant referral for extra-schedular consideration. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The Veteran is also service-connected for adjustment disorder with depression, hepatitis C with cirrhosis of the liver, type II diabetes mellitus, left hip iliotibial band syndrome with limitation of flexion, extension and adduction, left knee degenerative joint disease and instability, and right knee degenerative arthritis. The evidence does not show that these disabilities have a collective impact that is not contemplated by the individual ratings for each of his disabilities. Therefore, there is no collective effect present in this case to warrant referral for extraschedular consideration. Moreover, in Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." Here, however, the issue has not been argued by the Veteran nor has it been reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). The Board will therefore not address the issue further. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Referral for extraschedular consideration for the Veteran's left ankle disability for the period of August 13, 2007, through April 2, 2009, and for the period beginning February 13, 2013, is denied. REMAND Regarding the Veteran's TDIU claim, the Board notes that prior to July 29, 2011, the Veteran's service connected disabilities and their evaluations were as follows: hepatitis C at 20 percent disabling; osteochondroma of the distal left fibula with deformity (left ankle disability) at 20 percent disabling; left hip iliotibial band syndrome with limitation of flexion at 10 percent disabling; left knee degenerative joint disease at 10 percent disabling; and, left knee instability at 10 percent disabling. His combined evaluation was 50 percent disabling. Consequently, the Board cannot find that the Veteran meets the schedular criteria under 38 C.F.R. § 4.16(a). However, the Veteran has asserted that he was unable to work prior to July 29, 2011 as a result of his left ankle and the associated left lower extremity disorders, and his hepatitis C and the effects of that disability. The Veteran submitted an August 2011 Application for Compensation based on Unemployability, VA Form 21-8940, in which he indicated that he worked for the University of Tennessee Medical Center as a Food Service Supervisor on a full time ("40+" hours a week) basis from June 6, 2011 through June 23, 2011; he indicated that he lost that job due to his health. In a June 2013 VA Form 21-8940, however, the Veteran indicated that he worked in that position from June 6, 2011, through July 8, 2011, and that he lost 8 days of work due to illness. In light of the discrepancies in the Veteran's answers, the Board finds that a remand is necessary in order to attempt to clarify with the Veteran's last employer the specific dates of his employment. Finally, on remand, the AOJ should submit the Veteran's case to the Director of Compensation for an opinion regarding whether the Veteran was unemployable due to his service-connected disabilities prior to July 29, 2011. 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). Expedited handling is requested.) 1. Attempt to clarify with the Veteran the dates of his employment with his last employer, and also attempt to obtain any and all employment information from that employer, and any other employer prior to June 2011. 2. After completion of the above, refer the case to the Director of Compensation for an opinion respecting whether the Veteran was unemployable due to his service-connected disabilities prior to July 29, 2011 under 38 C.F.R. § 4.16(b). 3. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim for TDIU prior to July 29, 2011. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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 2014). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs