Citation Nr: 1804664 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 11-14 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial rating greater than 10 percent for a left ankle disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S.Wainaina, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1974 to October 1977. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In that decision, the RO awarded the Veteran service connection for a left ankle disability, and assigned an initial 10 percent rating effective June 22, 2009. The Veteran disagreed with this assigned rating and perfected this appeal. The case is currently under the jurisdiction of the RO in Boston, Massachusetts. In November 2011, the Veteran testified at a BVA hearing before a Veteran's Law Judge (VLJ) who is no longer with the Board. A transcript of the hearing is of record. Since the previous VLJ is no longer with the Board, the Veteran was afforded another opportunity to have a hearing. The Veteran was given 30 days to respond to the letter offering him another hearing. The Veteran did not respond within the 30 days and it is presumed he does not want another hearing. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). The case was remanded by the Board in April 2014 for further development and has since been returned to the Board because updated treatment records were obtained, a VA examination was conducted and Social Security Administration records were obtained as per the Board's 2014 remand directives. FINDINGS OF FACT 1. For the entire appeal period the Veteran's left ankle disability was manifested by marked limitation of motion. 2. The service-connected left ankle disability is not shown to preclude the Veteran from securing and following substantially gainful employment consistent with his educational and work background. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 20 percent, but no higher for a left ankle disability have been met. 38 U.S.C. 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.321(a), 4.7, 4.59, 4.71, Diagnostic Code (DC) 5271 (2017). 2. The criteria for the assignment of a total rating based on individual unemployability by reason of service-connected disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of a letter dated August 2009 that was sent to the Veteran that fully addressed all notice elements and was sent prior to the initial decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Notice consistent with the Court's holding in Dingess was provided to the Veteran. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 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. 38 (1993). The RO has obtained the service treatment records, VA clinical records, and private medical records. Additionally, the Veteran was afforded adequate medical examinations in furtherance of his claims. VA provided examinations in May 2010 and January 2016, for an ankle disorder. The examinations are adequate because they were performed by a medical professional based on review of the claims file and a solicitation of history and symptomatology from the Veteran, and examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiner considered the Veteran's reported medical history and lay statements concerning the service-connected disability. The VA examiner described the symptoms and manifestations due to the service-connected disability. The examination reports are accurate and fully descriptive. Neither the Veteran nor his representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions has been met. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran and his representative have submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims decided herein, such that the essential fairness of the adjudication is not affected. The Board notes that the RO was instructed in the April 2014 remand directive to send the Veteran a letter to afford him the opportunity to submit any relevant private treatment records he may have including those from Dr. E.K., or to authorize VA to obtain such records on his behalf. The RO mailed a letter to the Veteran in January 2016 and enclosed VA Form 21-4142, Authorization and Consent form. The Veteran did not respond or provide the private medical records. No further assistance is required by the RO. 38 CFR § 3.159( c)(1)(i), Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that the AOJ has complied with previous remand directives because the updated medical records were obtained, to the extent possible, and a VA examination was conducted as per the Board's remand directives. Increased Rating for a Left Ankle Disability Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). "Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In rating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). When assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's left ankle is currently rated as 10 percent disabling under Diagnostic Code 5271. Where there is a moderate limited motion of the ankle, a10 percent rating is warranted under DC 5271. Where there is marked limitation of the motion of the ankle a 20 percent rating is warranted under DC 5271. The words such as "marked" and "moderate" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R § 4.2, 4.6. The Board has reviewed all of the evidence in the Veteran's claim file, with an emphasis on the evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. In the January 2016 VA examination, the Veteran demonstrated left ankle dorsiflexion from 0 to 5 degrees and the plantar flexion from 0 to 25 degrees. The normal range of motion for dorsiflexion of the left ankle is from 0 degrees and 20 degrees. The normal range motion for plantar flexion is between 0 and 45 degrees. 38 C.F.R § 4.71(a) Plate II. The Board finds that the Veteran's left ankle disability is manifested by marked limitation of motion. An increase to 20 percent for the Veteran's left ankle disability is warranted. Under Diagnostic Code 5271, the Veteran is now receiving the highest schedular rating available, which is 20 percent. Other rating criteria have been considered but there is no other diagnostic code that would afford the Veteran a rating in excess of 20 percent for the left ankle disability. Specifically, the only code that provides for higher rating for the ankle is Diagnostic Code 5270 which provides higher rating based on ankylosis. Ankylosis is when the joint is fixed in place and unable to be moved. A 20 percent evaluation is assigned with ankylosis of the ankle in plantar flexion at less than 30 degrees. A 30 percent evaluation is assigned with ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. A 40 percent evaluation is assigned with ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with an abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a. As the Veteran retains motion in his left ankle, albeit limited by pain, ankylosis has never been demonstrated; therefore, a rating under this code is not for application in this case. In review of the record, there is no evidence of anklylosis on his left ankle at any time during the appeal period. The Board has considered the Veteran's statements in assessing the severity of his ankle disability. In the May 2011 VA Form 9, the Veteran stated that because of his ankle problem, he finds it hard to move around. The Veteran stated he had marked limitation of motion in his left ankle. In the June 2010 Notice of Disagreement, the Veteran stated that he was missing a ligament in his left ankle and he was going to need a supportive shoe. In an August 2010 letter, the Veteran stated that he has had orthopedic surgery and needs an ankle brace for support. In a BVA hearing dated November 2011, the Veteran testified that his left ankle is preventing him from maintaining full time employment. He testified because of his ankle disability, it has been hard for him to get a job. The Veteran's own statements tend to indicate that his ankle does need some support such as a supportive shoe or an ankle brace. However none of these statements tend to indicate the Veteran has ankylosis or overall functional impairment as severe as that resulting from ankylosis. Even if rated as arthritis under DCs 5003, 5010, a basis is not presented for a rating in excess of 20 percent. Arthritis is rated based on limitation of motion. The 20 percent rating assigned herein under DC 5271 is also based on limitation of motion. The Board has also considered the May 2010 VA examination report and the pertinent VA treatment records in assessing the severity of the Veteran's ankle disability. The May 2010 VA examination did not show any signs of ankylosis in the Veteran's left ankle. Dorsiflexion was from 0 to 15 degrees, and plantar flexion was from 0 to 20 degrees, with pain on motion. There were no additional limitations after repetitions of motion. In the January 2012 VA treatment note the Veteran requested an ankle brace for his left ankle, because his previous one was destroyed in a house fire. The examiner noted that the Veteran had less than 5 degrees in left ankle dorsiflexion with pain with palpation of the left ankle. In a July 2010 VA treatment record, the physician ordered an ankle support device for the Veteran. The Veteran had gone to seek treatment for his left ankle and claimed his ankle was worsened by any activity or range of motion such as putting on socks. The examiner also noted that the Veteran had a foot drop. The examiner noted that the Veteran maintained a good active range of motion of the ankle. The Veteran was further examined by a VA examiner at the January 2016 examination, where the examiner opined that the July 2010 VA physician found normal movement and strength of the Veteran's ankle. The examiner stated that it was inexplicable that the July 2010 VA physician could suggest the possibility of a foot drop. He further opined that no other examiner has before or since suggested a foot drop. The 2016 VA examiner did not find evidence of a foot drop in the exam. The examiner also noted that the Veteran stated that he has never been diagnosed with a foot drop. Consequently, the weight of the evidence is against finding foot drop at any time during the appeal period. In September 2010 VA treatment record the Veteran was fitted with an ankle stabilizer. The physician stated that the Veteran found the ankle stabilizer comfortable and supportive. In an August 2011 VA treatment record, the Veteran was complaining about arthritis in his left ankle and a torn ligament. The Veteran was referred to another medical expert as the VA physician deemed that the Veteran was not a good candidate for surgery. In a January 2012 VA treatment record the physician noted that there was no tissue swelling in his left ankle and he was referred to podiatry for a shoe to support his ankle. Although this documentation shows significant loss of ankle function, neither the VA examinations nor VA treatment records show ankylosis or overall functional impairment that is commensurate with ankylosis. Additionally, the Veteran's Social Security Administration records to do not pertain to his left ankle disability. The Board has considered the Veteran's statements and complaints, and the evidence of record. With regard to lay statements, the Board notes that while the Veteran is competent to speak to the observable symptoms such as pain, need for ankle support and the loss of function he experiences, he is not competent to speak to the specific objective criteria of exact measurements for range of motion as it pertains to the applicable diagnostic code. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In summary 20 percent is the highest rating the Veteran can get under Diagnostic Code 5271. Diagnostic Code 5270 is the next code that can award the Veteran a higher rating. This code requires evidence of ankylosis. The Veteran is not shown to have functional loss as severe as that resulting in ankylosis. Based on the evidence above, a rating of 20 percent, but no higher, is warranted. TDIU The Veteran contends that he cannot work due to limitations associated with his left ankle disability. He contends throughout his career, his jobs have involved standing for long periods of hours and his ankle hurts as a result. A veteran may be awarded total disability rating based on individual unemployability upon a showing that he or she is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disability or disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.26. Consideration may be given to his or her level of education, special training, and previous work experience in making this determination, but not to age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). In addition, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. The Veteran is service connected for left ankle disorder, evaluated as 20 percent disabling. This is his only service-connected disability and, therefore, the schedular criteria for a total disability rating under the provisions of 38 C.F.R. § 4.16(a) have not been met. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director of Compensation Service for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Accordingly, the Board must determine whether the Veteran is shown to be unemployable due to his service-connected left ankle disability. In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability rating based on individual unemployability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The Veteran underwent a VA examination in January 2016 for his left ankle disability. The examiner noted that the Veteran walks 2 to 4 miles a day. He opined that it is difficult for the Veteran to work at a job with prolonged weight-bearing. However the examiner noted that the Veteran's ankle condition would not affect his ability to do sedentary work. The Veteran testified in a November 2011 Board hearing. He testified he has a PhD in psychology. He testified that his left ankle has prevented him from getting employment. The Veteran is competent to testify to symptoms such as pain. The Veteran is not shown to have any medical or vocational specialist experience or education. Thus, his assertion regarding unemployability is of little probative value in supporting his claim. The Board finds the Veteran has the education, skills, and work experience to secure and follow substantially gainful employment, notwithstanding impairment due to his service-connected disability. In a November 2011 Board hearing the Veteran testified that he has a PhD in psychology. In his August 2009 statement in support of claim, the Veteran stated he achieved a master's degree in education from Springfield College, and that he lost his job because of nonservice-connected disability. The Board has considered the Veteran's statements in support of his claim. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994); however the issue of TDIU is a legal one and the Board must make the decision. The Veteran's post college education shows that he can perform sedentary work. The record shows in his August 2009 statement of claim that he is capable of such. The Veteran stated that while he was on active duty, he was delegated to light duty work, which made it easy for the Veteran to complete his tasks. Based on his post college education, the Board finds that the Veteran is capable of doing sedentary work. The issue is not whether he can perform previous work such as a pizza delivery driver, restaurant worker or health science specialist, but whether he can secure or follow substantially gainful employment in accordance with his level of education, training, prior work experience and severity of his service-connected disability. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. The evidence of record shows that the Veteran is capable of such. Work which is no more than sedentary and which permits him to take breaks as necessary is within his physical ability and is consistent with his education and occupational background. Therefore, his service-connected disability does not preclude employment and referral to the Director of Compensation Service for extraschedular consideration of TDIU is not warranted. 38 C.F.R § 4.16(b). In light of the above discussion, the Board concludes that the preponderance of the evidence is against an award of TDIU. There is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER A disability rating of 20 percent, but no higher, for left ankle disability is granted, subject to the laws and regulations governing payment of monetary benefits. A total rating based on individual unemployability by reason of service-connected disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs