Citation Nr: 1804518 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-17 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a disability rating greater than 20 percent for arthritis of the right ankle. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) from a July 2012 RO decision. The Veteran presented sworn testimony in support of his appeal during a January 2017 videoconference hearing before the undersigned Veterans Law Judge. Subsequent to the hearing on appeal, the Veteran submitted additional evidence in support of his appeals. He has waived initial RO consideration of this new evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks a higher disability rating for his service-connected right ankle disability. He currently holds a 20 percent rating under Diagnostic Code 5271, which is the maximum schedular rating for limitation of motion. He specifically seeks a separate rating for arthritis. However, the schedular criteria is clear that ratings for arthritis will not be combined with ratings based on limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note(1). A higher rating for incapacating episodes of arthritis is not available. The Veteran's right ankle disability, in addition to pain and limitation of motion, is manifested by reduced flexion and dorsiflexion strength (see VA examinations dated January 2012 and October 2014), recurrent episodes of swelling with numbness sensation and episodes of give-way leading to falls with additional injuries. He reports losing a disproportionate amount of time from work on account of his right ankle impairment, and has submitted use of Family Medical Leave Act (FMLA) benefits which he reports is due to his right ankle disability. He has also submitted multiple statements from supervisors at work to the effect that his ankle has prevented him from completing his work on occasion. Generally, evaluating a disability using either the corresponding or analogous Diagnostic Codes contained in the rating schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27. For exceptional cases, VA has authorized the assignment of extraschedular ratings and provided the following guidance for awarding such ratings: To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, [C & P], 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. 38 C.F.R. § 3.321(b). The Court has explained that a "determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry." Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Anderson v. Shinseki, 22 Vet. App. 423 (2009). Given the evidence of symptoms not specifically mentioned in the schedular criteria and the potential evidence of marked interference with employability, the Board finds that the criteria for referring the claim for extraschedular consideration have been met. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder records of the Veteran's VA treatment since September 2014. 2. Assist the Veteran in obtaining all records, including medical opinions, associated with his Family Medical Leave Act request with his employer. 3. Thereafter, the RO should refer the Veteran's case to the VA Under Secretary for Benefits or the Director of the VA's Compensation and Pension Service for review of the question of whether extra-schedular compensation under the provisions of 38 C.F.R. § 3.321(b) is warranted. The Director of C&P should be notified that the Veteran's right ankle disability, in addition to arthritis with pain and limitation of motion, results in the following: * reduced flexion and dorsiflexion strength (see VA examinations dated January 2012 and October 2014); * recurrent episodes of swelling with numbness sensation; * episodes of give-way leading to falls with additional injuries; * loss of time from work on account of his right ankle impairment with use of Family Medical Leave Act (FMLA) benefits; and * multiple statements from his supervisors at work report that the right ankle symptoms have prevented him from completing his work on occasion. 3. After the development requested above has been completed, the RO should again review the record. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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. §§ 5109B, 7112 (2012). _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).