Citation Nr: 18157228 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-12 001 DATE: December 12, 2018 ORDER Entitlement to an initial evaluation of 60 percent disabling, but no higher, for loss of use of the left lower extremity is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran has multiple disabilities of the left lower extremity including a leg length discrepancy of 5 cm, non-union of the tibia with marked knee or ankle disability, genus recurvatum with weakness and insecurity in weight-bearing, injury to Muscle Groups X, XI, and XII of at least moderate severity, left foot 5th metatarsal pain, left ankle sprain with moderate limitation of motion, degenerative joint disease of the left knee with limitation of motion of a noncompensable degree, a meniscal condition with “locking” and pain, and moderate instability of the left knee. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation of 60 percent disabling, but no higher, for loss of use of the left lower extremity have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.68, 4.71a, 4.73 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1979 to January 2003. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. VA is currently implementing a temporary program titled RAMP, the Rapid Appeals Modernization Program, that allows Veterans to "opt-in" to the new claims and appeals process before AMA goes into full effect. The Veteran was notified of his opportunity to participate in the RAMP program, and he chose to participate in that program in July 2018. The Veteran’s claim of entitlement to service connection for obstructive sleep apnea was denied in a February 2017 rating decision. The Veteran timely filed a Notice of Disagreement. Due to his election to participate in RAMP, the RO withdrew that Notice of Disagreement and will process that claim under the higher-level review lane. See November 2018 Letter to Veteran. However, the Veteran’s election to participate in RAMP does not apply to the pending appeal for a higher rating for the left lower extremity. This claim had already been activated at the Board in August 2017. As the notice letter informed him, appeals certified to the Board and “activated” through formal placement on the Board’s docket are excluded from RAMP and will remain pending in the current appeals process. Therefore, this issue was not eligible for the RAMP program, and the Board will continue to process his appeal. Entitlement to TDIU is “part and parcel” of the determination of the appropriate rating for a disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The Veteran has raised the issue of entitlement to TDIU during the pendency of this increased rating claim, so it has been included as a part of this appeal. See November 2018 Appellant’s Brief. Finally, the Veteran’s representative appears to argue in his November 2018 Appellant’s Brief that a depression claim is inextricably intertwined with the appropriate rating for his left lower extremity. The Veteran was granted service connection for depression as secondary to his physical disabilities (including loss of use of the left lower extremity) and granted a 30 percent rating. See March 2017 Rating Decision. He did not appeal either the effective date or the rating assigned for his service-connected depression. There is no depression claim before the Board or even on appeal. Furthermore, the claim of entitlement to a higher rating for the left lower extremity is factually and analytically distinct from the proper effective date and/or rating for a psychiatric condition. The issues are not inextricably intertwined. The Board will not address any issues involving the Veteran’s service-connected depression (e.g., effective date or appropriate rating) as any such issues are not properly before the Board at this time. 1. Entitlement to an evaluation in excess of 40 percent disabling for loss of use of the left lower extremity The Veteran was awarded an initial 40 percent disability rating for the loss of use of the left lower extremity instead of independent ratings for his various left lower extremity disabilities (including left leg fracture with nonunion of bone, muscle impairment with impaired function of the left knee, foot, and ankle). See March 2015 Rating Decision; see also January 2014 Rating Decision (granting a temporary 100 percent for the left lower extremity from March 4, 2013, to March 1, 2014). He appealed this rating and, notably, the appealed rating includes a rating for the impairment of the knee. See April 2015 VA Form 9 (“Left lower extremity evaluation should be 60% vice 40% because my disabilities include my left knee.”); November 2018 Appellant’s Brief. One month later, the Veteran was also granted a 10 percent rating for his left knee. See April 2015 Rating Decision. Effective December 20, 2017, he received a temporary 100 percent rating pursuant to 38 C.F.R. § 4.30 based on left knee surgery. He is scheduled to return to a 30 percent rating for the left knee on February 1, 2019. Importantly, a schedular evaluation greater than 60 percent for the left lower extremity is prohibited by the “amputation rule,” found in 38 C.F.R. § 4.68, which prohibits the assignment of a combined rating for disabilities of an extremity higher than the rating for the amputation at the elective level, were amputation to be performed. Here, amputation at the elective level would be at or above the knee, as high as the thigh level, middle or lower thirds. Amputation any level at the knee or higher warrants a 60 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5162-5164. Thus, the Veteran cannot receive a higher combined rating for his replaced knee plus the disabilities affecting his lower leg and foot than he would receive for a leg amputated at or above the knee (thigh level). The issue here is whether the Veteran should have had an initial 60 percent rating under DCs 5162, 5163, or 5164, rather than separate ratings of 40 percent under 5167 and a 10 percent rating under 5003-5260, plus any other ratings warranted for the left lower extremity during the period prior to December 20, 2017. The Veteran’s left lower leg disabilities include: • Leg length discrepancy of 5 cm which would warrant a 10 percent rating. See 38 C.F.R. § 4.71a, DC 5275; November 2014 VA Examination; December 2014 VA Examination. • Non-union of the tibia with marked knee or ankle disability which would warrant 30 percent rating. See 38 C.F.R. § 4.71a, DC 5262; November 2014 VA Examination; December 2014 VA Examination. • Genus recurvatum with weakness and insecurity in weight-bearing which would warrant a 10 percent rating. See 38 C.F.R. § 4.71a, DC 5263; November 2014 VA Examination. • Several muscle/skin defects of the lower left leg which would warrant three separate ratings of at least 10 percent each. See 38 C.F.R. § 4.73, DC 5310-5312; January 2013 VA Examination (noting injury to Muscle Groups X, XI, and XII of at least moderate severity); December 2014 VA Examination (injury to Group XII with consistent loss of power, weakness, lowered threshold of fatigue, and associated functional loss; “residual muscle deformity is considerable and is functionally impairing; thus, it is worthy of evaluation increase”). • Left foot 5th metatarsal pain and a left ankle sprain, both related to his service-related leg condition, and which would each warrant 10 percent ratings. See 38 C.F.R. § 4.71a, DCs 5271 (ankle) and 5284 (foot); October 2013 VA Examination (describing pain in 5th metatarsal; noting left ankle sprain and reduced range of motion, pain, reduced muscle strength, and associated functional loss); November 2014 VA Examination; April 2011 Private Opinion Letter (noting impaired range of motion in left ankle and severe pain in the 5th metatarsal); September 2011 Private Opinion Letter (further clarifying limitation of range of motion of the left ankle). The combined rating for these various disabilities would comfortably exceed 40 percent, so a single 40 percent rating is warranted under the “amputation rule” for the lower leg disabilities. 38 C.F.R. § 4.68. However, the Veteran also has left knee disabilities and, as noted above, a higher 60 percent rating is available if the loss of use of the left leg extends to or above the knee. The Veteran’s knee conditions include: • Degenerative joint disease of the left knee with limitation of motion which would warrant a minimum 10 percent rating. See 38 C.F.R. § 4.71a, DCs 5003, 5260, 5261; October 2013 VA Examination; November 2014 VA Examination; December 2014 VA Examination.   • Meniscal condition with “locking” and pain which would warrant at least a 10 percent rating with consideration of pyramiding concerns. See 38 C.F.R. § 4.71a, DC 5258; October 2013 VA Examination; December 2014 VA Examination (diagnosing meniscal tear with frequent episodes of joint locking and joint pain as well as weakness and crepitus). • Instability of the left knee warranting a 20 rating. See 38 C.F.R. § 4.71a, DC 5257; November 2014 VA Examination (Anterior instability, posterior instability, and medial-lateral instability all of 0-5 mm and deemed “moderate”); April 2011 Private Opinion Letter (“left knee lateral joint instability”). These disabilities together with the 40 percent rating for the lower leg would combine to a 60 percent rating for the leg from the knee down. A 60 percent rating is the maximum evaluation permitted for disabilities of the leg at or below the leg or as high as the middle of the thigh. 38 C.F.R. §§ 4.68, 4.71a, DCs 5162, 5163, or 5164. All applicable possibilities were considered for a higher or separate rating, and a rating in excess of 60 percent for the Veteran’s service-connected left lower extremity disability is not warranted, except for the temporary 100 percent ratings awarded from March 4, 2013, to March 1, 2014 and from December 20, 2017, to February 1, 2019. Consequently, the Board will grant a 60 percent rating for the left leg disability pursuant to DC 5162. The evidence above indicates lower leg and knee disabilities (e.g., limitation of motion and instability) present from the effective date of the grant of service connection for left leg disabilities, namely February 14, 2010. See, e.g., January 2013 VA Examination (muscle injuries from date of in-service incident); September 2008 Private Treatment Note (diagnosing degenerative joint disease of the left knee); April 2011 Private Opinion Letter (“left knee lateral joint instability”). The Board grants an initial rating of 60 percent for the service-connected left leg disabilities. This rating replaces both the 40 percent initial rating for loss of use of the left lower extremity under DC 5167 and the 10 percent rating from June 14, 2013, for left knee degenerative joint disease with meniscal tear under DC 5003-5260. The temporary 100 percent ratings pursuant to 38 C.F.R. § 4.30 based on left leg surgery effective March 4, 2013, to March 1, 2014, and left knee surgery effective from December 20, 2017, to February 1, 2019, remain in effect. Duties to Notify and Assist The Veteran has not raised any specific issues with the duty to notify or duty to assist. 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 a duty to assist argument). Moreover, the Board has granted the relief sought by the Veteran. Therefore, the Board needs to discuss VA’s compliance with the duties to notify and assist. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Veteran has raised the issue of TDIU during the course of this appeal. See November 2018 Appellant’s Brief. However, the claim has not been developed below, to include requesting employment information. The matter must be remanded prior to determining the TDIU claim on the merits. The matter is REMANDED for the following action: 1. Send the Veteran appropriate notice regarding the requirements for establishing a TDIU claim, enclose a VA Form 21-8940, and request that the Veteran complete and return the VA Form 21-8940. 2. After the above development, and any additionally indicated development, has been completed, adjudicate the claim of entitlement to TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kerry Hubers, Counsel