Citation Nr: 18153420 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-52 476 DATE: November 27, 2018 REMANDED Entitlement to a rating in excess of 40 percent for residuals of a right ankle disability on an extraschedular basis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) for loss of use of a foot is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from January 1976 to March 1976. 1. A rating in excess of 40 percent for residuals of a right ankle disability on an extraschedular basis is remanded. The Veteran contends that the symptoms of his service-connected residuals of a right ankle disability are such that the disability warrants a rating on an extraschedular basis. Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation 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 as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b)(1). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, 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. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the Veteran’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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the Veteran’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 those provided by the regulation as “governing norms.” 38 C.F.R. 3.321(b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”). The Veteran currently has a maximum rating of 40 percent disabling for residuals of a right ankle disability under a hyphenated diagnostic code 5003-5270. Under this diagnostic code, a 40 percent rating is warranted for ankylosis of the ankle manifested in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. In a September 2017 VA examination, the examiner noted that the Veteran has a fully fused ankle and is unable to complete any type of range of motion on this ankle nor any dorsal or plantar flexion. The examiner affirmed that the Veteran experienced functional impairment such that no effective function remains other than that which would be equally well served by an amputation and prosthesis, and further noted that, due to the limitation of mobility and loss of all range of motion with issues with driving, walking, and climbing, the Veteran has been told the only other option for him is amputation of his right foot and acquiring a prosthesis. The examiner noted that, when the Veteran stands, his gait is initially unsteady until he gets his bearings with his cane. The examiner further noted that the Veteran walks with his right foot rotated out, and he also drags foot. The Veteran has asserted that his right ankle disability causes marked interference with employment, stating that he is unable to maintain any type of employment due to his inability to stand, sit, or walk for any period of time without the use of narcotics. The Veteran further asserted that his last employment ended due to his disability. Given the findings of the September 2017 VA examination, to include findings of complete loss of range of motion and functional impairment such that no effective function remains other than that which would be equally well served by an amputation and prosthesis, and the Veteran’s reports of marked interference with employment, the Board finds that the evidence of record reasonably raises the question of entitlement to an extraschedular rating. Therefore, a remand for consideration of an extraschedular rating by the Under Secretary or the Director of Compensation, is necessary. 2. Entitlement to a TDIU is remanded. 3. Entitlement to special monthly compensation (SMC) for loss of use of one foot. In May 2017, the Veteran filed a formal claim of entitlement to a TDIU. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran is seeking entitlement to a TDIU as a component of his claim for a higher rating for his service-connected residuals of a right ankle disability. Likewise, in a February 2017 Statement from Accredited Representative, the Veteran, through his representative, asserted that the severe lack of mobility and muscle strength of his ankle would qualify him for SMC under 38 U.S.C. §1114(k), loss of one foot. The claim for SMC is sought as a component of the Veteran’s claim for a higher rating for his service-connected residuals of his right ankle disability. Because a decision on the rating of the right ankle disability could significantly impact a decision on entitlement to a TDIU and an SMC, the issues are inextricably intertwined. A remand of the claims for a TDIU and SMC is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: Refer the claim to VA’s Director of Compensation and Pension Service or Under Secretary for Benefits to adjudicate entitlement to an extraschedular rating for right ankle disability. After review of the Veteran’s file, the Under Secretary or Director should issue a memorandum addressing whether the Veteran is entitled to a rating higher than 40 percent for a right ankle disability on an extraschedular basis. The memorandum should clearly provide a summary of the facts and law relied upon in making the decision, and should include an explanation of the reasons and bases for the decision. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ford, Associate Counsel