Citation Nr: 1752840 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 03-04 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to increased ratings, on an extraschedular basis, for post-operative left ankle degenerative joint disease, ankylosis, in excess of 20 percent for the period prior to March 1, 2012 (other than periods of temporary total convalescent ratings); in excess of 30 percent for the period from March 1, 2012 to February 6, 2015; and, in excess of 40 percent from February 7, 2015. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to August 1992 and from October 1990 to April 1991. These matters come before 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 March 2016, the Board dismissed the Veteran's claim for increased rating for the left ankle. The Veteran subsequently appealed the March 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2016 order, the Court granted a joint motion for partial remand (JMR), which vacated the Board's decision and remanded the Veteran's appeal to the Board to address whether specific correspondence constituted a withdrawal of all left ankle ratings, rather than a withdrawal of only the increase to a 40 percent rating. In November 2016 written argument, the Veteran's representative maintained that the Veteran had not withdrawn any of the disability ratings assigned to the left ankle disability. Thus, in February 2017, the Board found that all disability ratings assigned to the service-connected left ankle disability are on appeal. In a February 2017 decision, the Board granted an increased rating to 20 percent, on a schedular basis, for the period prior to March 7, 2006, and from May 1, 2006, to March 31, 2009. The Board denied increased ratings, on a schedular basis, in excess of 30 percent from Mach 1, 2012, to February 6, 2015, and in excess of 40 percent from February 7, 2015. The claim for increased ratings on an extraschedular basis was remanded for additional development. In a June 2017 rating decision, the RO effectuated the Board decision. Thus, the issue before the Board is as noted on the title page. FINDINGS OF FACT 1. During the period on appeal, the Veteran was granted 100 percent disability ratings for temporary convalescence from April 1, 2009 to March 1, 2012. 2. Secondary service connection has been granted and separate ratings assigned for related disabilities that cause occupational impairment. 3. The Veteran's service-connected left ankle disability does not present an exceptional or unusual disability picture with such factors as marked interference with employment or frequent periods of hospitalization to render impractical the application of the regular rating standards. CONCLUSION OF LAW The criteria for an entitlement to increased ratings, on an extraschedular basis, for post-operative left ankle degenerative joint disease, ankylosis, in excess of 20 percent for the period prior to March 1, 2012 (other than periods of temporary total convalescent ratings); in excess of 30 percent for the period from March 1, 2012 to February 6, 2015; and, in excess of 40 percent from February 7, 2015 have not been met. 38 U.S.C.A. 1155, 5107 (West 2014); 38 C.F.R. 3.321(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Pursuant to 38 C.F.R. § 3.321(b)(1), in the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. The Board is precluded from assigning an extraschedular evaluation in the first instance. In the February 2017 decision, the Board considered steps outlined by the Court in Thun v. Peake, 22 Vet. App. 111 (2008) and referred the case to the Director to determine whether an extraschedular rating is warranted for the Veteran's left ankle disability. The Court has explained the three-step framework for determining entitlement to referral for extraschedular consideration. Thun, 22 Vet. App. at 115. First, the Board must determine whether the evidence "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. This obliges the Board to compare "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." Id. When this requirement is satisfied, the Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 116 (quoting 38 C.F.R. § 3.321(b)(1)). If both of these inquiries are answered in the affirmative, the Board must refer the matter to the Under Secretary for Benefits or the Director for the third inquiry, i.e., a determination of whether, "[t]o accord justice," the Veteran's disability picture requires the assignment of an extraschedular evaluation. The elements set forth in Thun "must be established before an extraschedular rating can be awarded." Anderson v. Shinseki, 22 Vet.App. 423 (2009). Pursuant to the February 2017 decision, the RO referred the Veteran's claim to the Director for extraschedular consideration for his left ankle disability. In July 2017, the Director made the determination that the Veteran's disability did not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that renders application of regular rating schedular standards impractical. The extraschedular issue is properly back before the Board for review. The Board must now determine, de novo, whether an extraschedular rating is warranted. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The Director's determination is not evidence. Wages v. McDonald, 27 Vet. App. 233 (2015). Once the Director has conducted his review, all three elements of Thun are reviewable by the Board. Id., at 239. When the Board determined in February 2017 that referral for extraschedular consideration was appropriate, it essentially found that the first two elements of Thun were met. Thus, the current decision will focus on whether the Veteran's disability presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that renders application of regular rating schedular standards impractical. In November 2002, service connection was granted and a 10 percent disability evaluation assigned for the Veteran's left ankle disability, effective August 11, 2000. In March 2006, the Veteran had surgery on his left ankle and was assigned a temporary total convalescent rating under 38 C.F.R. § 4.30 for 30 days starting April 1, 2006. The Veteran underwent surgical fusion of the left ankle in April and October 2009. He was unable to return to full duty without any work restrictions until October 2010 and additional temporary total ratings were assigned. In November 2010, the Veteran underwent repeat arthrodesis and later experienced complications related to that procedure. In a January 2013 rating decision, the temporary total rating was extended to March 1, 2012, at which time a 30 percent rating was assigned. The rating was increased to 40 percent, effective February 7, 2015. During the course of the appeal, service connection has been granted and separate ratings assigned for the following disabilities as secondary to the service-connected left ankle disability: major depressive disorder; complete paralysis of the common peroneal nerve, left lower extremity; osteoarthritis of the left knee, status post total replacement; left foot neuropathy; and a surgical scar. Entitlement to special monthly compensation (SMC) for loss of use of the left foot was established effective April 25, 2014, and the Veteran has been found to be entitled to automobile and adaptive equipment and chapter 35 benefits secondary to the service-connected left ankle disability. Entitlement to individual unemployability benefits was established effective November 28, 2015. The Veteran worked as a letter carrier for the United States Postal Service. The Postal Service confirmed that his last day of employment was November 27, 2015, but did not include any specific details about the amount of time lost during that employment. Based on a review of the record, the Board finds that the Veteran's disability does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that renders application of regular rating schedular standards impractical. The Veteran underwent several surgical procedures on the left ankle; however, temporary total ratings were assigned for those periods to account for convalescence. Service connection and separate ratings, including SMC, have also been established for several disabilities as secondary to the service-connected left ankle. As such, related disabilities that also resulted in occupational impairment (i.e., marked interference with employment) have been separately compensated. Thus, for periods of marked interference with employment or frequent hospitalizations, the schedular standards are practical. Further, all related occupational impairment has been separately compensated. Entitlement to an extraschedular rating is not warranted. ORDER Entitlement to increased ratings, on an extraschedular basis, for post-operative left ankle degenerative joint disease, ankylosis, in excess of 20 percent for the period prior to March 1, 2012 (other than periods of temporary total convalescent ratings); in excess of 30 percent for the period from March 1, 2012 to February 6, 2015; and, in excess of 40 percent from February 7, 2015 is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs