Citation Nr: 1800984 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 12-33 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial disability rating for a right ankle disability in excess of 10 percent prior to January 30, 2013 and in excess of 20 percent thereafter. 2. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1959 to August 1962. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in July 2016. A transcript of the hearing is associated with the claims file. The Board remanded these matters in February 2017 for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. During the period at issue, the preponderance of the evidence shows that the Veteran's right ankle disability manifested as moderate limitation of motion prior to January 30, 2013 and marked limitation of motion beginning January 30, 2013. 2. The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a right ankle disability prior to January 30, 2013 and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1131 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a Diagnostic Codes (DCs) 5003, 5010, 5056, 5270-5274 (2017). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist On appeal, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist in regard to the Veteran's claims. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board also finds there has been substantial compliance with its February 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Entitlement to an Initial Disability Rating for a Right Ankle Disability in Excess of 10 Percent Prior to January 30, 2013 and in Excess of 20 Percent thereafter. Rating Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Disabilities must be reviewed in relation to their history. Where there is a question as to which of two evaluations apply, the Board assigns the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Accordingly, separate ratings may be assigned for separate periods of time based on the facts found, which is a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, that is the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes (DCs), is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In pertinent part, the ankle is rated under 38 C.F.R. § 4.71a, DCs 5003, 5010, 5056, 5270-5274. DC 5010 indicates arthritis due to trauma substantiated by X-ray findings should be rated as degenerative arthritis under DC 5003. DC 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. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. In the absence of limitation of motion, a 10 percent rating is assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 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). Although pain may cause functional loss, pain itself does not constitute functional loss. 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Full range of motion for the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. Analysis The Veteran's right ankle disability is currently rated under DC 5271 at 10 percent prior to January 30, 2013 based on evidence of moderate limitation of motion of the right ankle. A 20 percent rating has been assigned under DC 5271 beginning January 30, 2013 based on a VA examination revealing a worsening of the disability picture more nearly approximating marked limitation of motion of the right ankle as of that date. DCs 5003 and 5010 are not applicable as the Veteran's limitation of motion in the right ankle (including due to pain, weakness, fatigability, and incoordination) is contemplated by the Veteran's rating under DC 5271. DCs 5056, 5270, 5272, 5273, and 5274 are also not applicable because there is no evidence of record that the Veteran suffers from, respectively, prosthetic replacement of the ankle joint, ankylosis in plantar flexion, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or that he had an astragalectomy. Accordingly, the Board will proceed to assess whether the evidence supports a finding that the Veteran is entitled to a higher disability rating under DC 5271. VA afforded the Veteran an examination of his right ankle disability in April 2010. The Veteran reported many symptoms including weakness, stiffness, swelling, redness, giving way, lack of endurance, fatigability, and pain. He denied experiencing heat, locking, deformity, tenderness, drainage, effusion, subluxation, and dislocation. He reported experiencing flare-ups as often as one time per day lasting two hours. He reported the pain was a severity level five out of ten. He reported flare-ups were precipitated by physical activity and alleviated by rest and Motrin. The Veteran reported that during flare-ups he experienced functional impairment which is described as difficulty walking and standing, and the Veteran indicated he required a cane to walk. However, the Veteran denied being hospitalized, receiving surgery, or becoming incapacitated as a result of the right ankle condition. He has not had any joint replacement. The April 2010 VA right ankle examiner examined the Veteran's right ankle to objectively assess limitations in comparison to the left ankle. The examiner found that the Veteran's posture was normal although the Veteran walked with an antalgic gait. Examination of the feet did not reveal any signs of abnormal weight bearing or breakdown, callosities, or any unusual shoe wear pattern. The examiner found guarding of movement on the right, but there were no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or ankylosis. In regard to movement of the right ankle, the examiner found painful dorsiflexion at 10 degrees. Painful plantar flexion was at 30 degrees. The examiner found no additional degree of limitation after repetitive range of motion testing including due to pain, fatigue, weakness, lack of endurance, or incoordination. X-ray findings were within normal limits with no indication of malunion to the os calcius or astragalus on the right. The examiner concluded that the effect on the Veteran's daily activity was moderate as the Veteran required a cane. The Veteran was afforded another VA examination of the severity of his right ankle disability on January 30, 2013. The examiner noted that the Veteran was diagnosed with a right ankle sprain with decreased mobility, osteopenia, and calcaneal spurs in 1960. The examiner noted many of the Veteran's subjective complaints similar to the findings in the prior examination. However, in contrast to the April 2010 examination findings, the January 2013 examiner found the Veteran was more functionally limited on examination. The Veteran reported that flare-ups of his disability caused not only difficulty ambulating but also that they caused him to fall. Right ankle plantar flexion (including due to pain) was further limited to 20 degrees, and dorsiflexion was further limited (including due to pain) to five degrees. The findings after repetitive use were the same. There was functional loss including less movement than normal due to excess fatigability and pain. The Veteran reported constant use of a cane. The Veteran was afforded a third VA examination of his right ankle in July 2017 to assess its current severity. The Veteran reported that his condition continued to get progressively worse with increasing immobility and pain. The Veteran reported falling when the right leg gives out. Flare-ups were described as swelling, and the Veteran reported limitations to walking and driving. Dorsiflexion was found to be limited to 10 degrees, and plantar flexion was limited to 20 degrees with tenderness or pain on palpitation of the joint. Pain with functional loss and crepitus were noted, but there was no evidence of pain with weight bearing. There was no additional functional loss after repetitive use. The examiner was unable to say without speculation whether the Veteran would be further functionally limited due to pain, weakness, fatigability, or incoordination with repeated use over time. Ankle instability or dislocation was suspected. Muscle strength was 5/5 on both plantar flexion and dorsiflexion with no muscle atrophy. The examiner opined that the Veteran's right ankle disability would limit the Veteran from prolonged standing, walking, and running. The Board notes that the Veteran had significantly greater range of motion in the right ankle on the April 2010 VA examination in comparison to the later examinations. The subjective complaints were also not as severe, and the Veteran contends that his condition has worsened over time. The Board notes that the April 2010 VA examiner described the Veteran's limitations as moderate at the time. The Board finds the limitation of range of motion measured and other findings support a finding of only moderate limitation of motion in the right ankle in the context of the totality of the evidence prior to January 30, 2013. In contrast, the measurements obtained on January 30, 2013 show evidence of up to an additional fifty percent reduction in the Veteran's range of motion in the right ankle consistent with a worsening condition ascertainable as of that date. Accordingly, the Board finds the medical evidence and objective evidence shows that the Veteran's disability picture for the right knee more nearly approximates criteria for a 10 percent (moderate) rating prior to January 30, 2013 and a 20 percent (marked) rating as of that date. The Board considered the Veteran's contention that private treatment records prior to January 30, 2013 support a finding of marked limitation of the right ankle at the time. See October 2016 Letter from the Veteran; June 2014 Letter from the Veteran; Letter from the Veteran received June 2013. However, the pertinent records from Kaiser Permanente cited by the Veteran do not contain substantial measurements of the Veteran's range of motion in the Veteran's right ankle showing the Veteran to be more functionally limited than at the time of the April 2010 VA examination. See, e.g., January 2011 treatment progress notes from Kaiser Permanente (noting that the Veteran's ankle was intact and strong with no varus/valgus instability). Accordingly, the Board finds no compelling basis to find the Veteran more functionally limited prior to January 30, 2013 on the basis of the treatment records. In light of the above the Board finds that the preponderance of the evidence is against a finding that the Veteran had marked limitation of motion in his right ankle prior to January 30, 2013. However, the evidence does show that on January 30, 2013 it was factually ascertainable that the Veteran's right ankle disability worsened to the point of manifesting marked limitation of motion of the joint, which is consistent with the increase from a 10 percent disability rating to a 20 percent disability rating as of that date. As the maximum rating under DC 5271 is 20 percent for a right ankle disability, the Board cannot award a higher schedular rating for the right ankle as no other DCs apply in this case for the reasons noted above. According, the Veteran's claim for an increase in the disability ratings for his right ankle disability must be denied. Entitlement to a TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where the percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. To date, the Veteran has been service connected for a right knee medial meniscus tear (20 percent), a right ankle disability (20 percent), a right knee injury (10 percent), tinnitus (10 percent), bilateral hearing loss (0 percent), and scarring on the right knee (0 percent). His combined rating was 40 percent effective January 30, 2013. The Board notes that the Veteran does not meet the schedular criteria for a TDIU, and the Agency of Original Jurisdiction found that referral to the Director of Compensation Service was not warranted because the evidence did not show the Veteran was unable to maintain substantial gainful employment. On appeal, the Board will further consider whether extraschedular referral is warranted based on its de novo review of the record. First, the Board notes that the Veteran excluded hearing loss and tinnitus in his formal claim form for a TDIU when he listed service-connected disabilities contributing to his unemployment. Nevertheless, the Board considered the impact of hearing loss and tinnitus on the Veteran's ability maintain substantially gainful employment. In this case, the Board notes that the VA examinations and other pertinent evidence of record show that the Veteran experiences some impairments of communication as a result of these disabilities. See, e.g. November 2011 VA hearing loss and tinnitus examination (noting the Veteran had some difficulty talking on the phone, hearing honking and sirens, and difficulty with family relations due to the need to increase volume on the TV). However, while the Veteran may not be able to perform jobs requiring excellent hearing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's hearing loss and tinnitus would preclude work in jobs requiring minimal verbal communication or only written communication. In regard to the Veteran's knee and ankle disabilities (including associated scarring), the Board finds that the evidence cited above shows that in the schedular rating analysis reflects that such disabilities significantly limit the Veteran's ability to walk, stand, drive, lift/carry heavy objects, and perform postural functions for extended periods of time. See also May 2017 VA knee examination (indicating that the Veteran would be limited to light or sedentary work as a result of his service-connected right knee disability); October 2013 opinion by D.B.M. (noting the Veteran needs to sit and rest after five minutes of walking due to right knee pain); May 2013 opinion by D.B.M. The Board also notes that the Veteran uses a cane to move about as a result of his service-connected disabilities, which may limit his ability to use his hands while standing. Nevertheless, the Board finds that the preponderance of the evidence of record shows that the Veteran's disabilities would not preclude the performance of sedentary jobs allowing the Veteran the option to sit or stand at will. See, e.g., May 2017 VA knee examination (indicating that the Veteran's limitations would not preclude the performance of all sedentary tasks). There is no medical opinion to the contrary in the record supported by citation to relevant treatment records or other evidence, and the treatment records do not indicate the Veteran has significant limitations in performing manipulative functions while sitting as a result of his service-connected disabilities. While the Board notes that the Veteran stated that he retired from work as a social worker as a result of his service-connected disabilities, there are no specific contentions in the record from the Veteran that his disabilities would preclude sedentary work with an option to sit or stand at will. While the Board considered that pain may limit the Veteran's concentration, the Board finds that the evidence of record does not contain compelling evidence of limitations of concentration precluding the performance of simple, unskilled or semi-skilled tasks. In light of the above, the Board finds that a referral to the Director of Compensation Service for extraschedular consideration is not warranted in this case as the preponderance of the evidence shows that the Veteran is capable of obtaining and maintaining substantially gainful employment. Accordingly, the Veteran's claim for entitlement to a TDIU must be denied. ORDER Entitlement to an initial disability rating for a right ankle disability in excess of 10 percent prior to January 30, 2013 and in excess of 20 percent thereafter is denied. Entitlement to a TDIU is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs