Citation Nr: 18158523 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 15-27 413A DATE: December 17, 2018 ORDER Entitlement to a 20 percent rating for service-connected degenerative joint disease (DJD) of the left ankle is granted. Entitlement to a 20 percent for service-connected DJD of the right ankle is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s service-connected DJD of the left ankle manifests limitation of dorsiflexion to 5 degrees which is one quarter of normal range of motion and more nearly approximates marked limitation of motion. 2. The Veteran’s service-connected DJD of the left ankle manifests limitation of dorsiflexion to 5 degrees which is one quarter of normal range of motion and more nearly approximates marked limitation of motion. 3. The evidence of record does not support a finding that the Veteran’s service-connected disabilities render him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent rating for service-connected DJD of the left ankle have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003-5271 (2017). 2. The criteria for entitlement to a 20 percent rating for service-connected DJD of the right ankle have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003-5271 (2017). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the U.S. Army from September 1983 to January 1985. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id.; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49(1990). 1. Entitlement to a rating in excess of 10 percent for service-connected DJD of the left ankle 2. Entitlement to a rating in excess of 10 percent for service-connected DJD of the right ankle Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is 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. The Veteran’s ankle disabilities are assigned a 10 percent rating per ankle since the January 19, 1985, effective date of the grant of service connection. He subsequently, sought an increased rating in a December 18, 2013, correspondence. At present, the Veteran’s ankles are rated under the Diagnostic Codes (DCs) 5003-5271. 38 C.F.R. § 4.71a. Hyphenated DCs are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Veteran contends his DJD of his ankles are worse than his assigned evaluations reflect. Specifically, he asserts that pain and loss of flexion and mobility affects the activities of daily living. Under DC 5003 degenerative arthritis established by X-ray finding will be rated on the basis of limitation of motion under the appropriate DC, for the specific joint or joints involved. Under Diagnostic Code 5271, a rating of 10 percent is warranted when limitation of motion of the ankle is moderate. 38 C.F.R. § 4.71a. The maximum rating of 20 percent is warranted where the limitation of motion in the ankle is marked. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Words such as “moderate” and “marked” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2017). After review of the lay and medical evidence of record, the Board finds that preponderance of the evidence supports a finding that the Veteran’s disability picture for his ankle disabilities more closely approximates “marked” limitation of ankle motion so that the criteria for a 20 percent rating are met under DC 5271 for the entire rating period. To this point, the Board notes that the Veteran underwent VA examination in July 2014, where he reported an increase in the pain and severity of his disability over the last few years. The Veteran worked as a bartender and stated that during a flare-up, he would miss two days of work per week due to the inability to stand for prolonged periods of time. Upon range of motion testing, the Veteran measured 0 to 5 degrees dorsiflexion and 0 to 45 degrees plantar for both ankles, with no evidence of painful motion or ankylosis present. The examiner specified that the Veteran’s ankle condition did not impact his ability to work on a regular basis, but during flare that last one to two days, the Veteran could be sixty to eighty-percent incapacitated. The previous VA examiner submitted a September 2014 statement adding that the Veteran alleged he was chair or bedridden during flares, however as the Veteran would be an untrained observer, any attempt at assessing additional loss of range of motion during flares would be purely speculative. VA treatment records from November 2015 and February 2016 note that the Veteran had continual, aching bilateral ankle pain, which changed due to the weather. In March 2017, the Veteran underwent additional VA examination where the Veteran noted that he used a walker regularly, without reporting any traditional flare-ups. Upon range of motion testing, the Veteran exhibited 0 to 10 degrees dorsiflexion and 0 to 40 degrees plantar, with no evidence of ankylosis. The examiner recognized painful motion on the examination, particularly with weight-bearing but indicated it did not result in any additional functional loss. Lastly, the examiner was unable to state whether pain, weakness, fatigability, or incoordination would significantly limit the Veteran’s ability with repeated use or over time as that would require assessment over a longer period of time by a trained observer, which was not feasible at said examination. The Veteran testified at his June 2018 hearing that he experienced issues with walking and standing for long periods of time, and could only walk on even surfaces without steps. He stated he experienced stabbing pain daily, and used rest, a hot tub, and medication to alleviate his pain, though it sometimes interfered but did not prevent activities of daily living. The Veteran reported experiencing flare-ups caused by twisting his ankles, uneven surfaces, or even bad weather. He further stated that he experienced flares a couple of times per month lasting more than one day, where his ankles impeded certain activities on the job as a residential manager at a homeless shelter. The August 2018 examination report noted that the Veteran described pain, which worsened upon weight-bearing. The Veteran reported flare-ups once per week of increased pain which he described as bad enough that he sometimes avoided walking for the day. Upon range of motion testing, the Veteran exhibited 0 to 5 degrees dorsiflexion, and 0 to 32 degrees plantar for the right ankle, and 0 to 5 degrees dorsiflexion and 0 to 35 degrees plantar for the left with pain upon weight-bearing. The examination was not conducted during a flare-up, but the examiner stated the examination was neither medically consistent nor inconsistent with the Veteran’s aforementioned report of increased pain during flare-ups. The report reflected that there was no evidence of ankylosis, nor issues with stability, though the Veteran used assistive devices of a cane and walker occasionally. The examiner opined that the Veteran’s disability affected his ability to work as he would be unable to hold a job which required extensive standing or walking. The Veteran’s service-connected DJD of the left and left ankles manifest limitation of dorsiflexion to 5 degrees which is one quarter of normal range of motion. He credibly reports flares which would result in very minimal or no dorsiflexion during a flare up. The VA evaluations of functional impairment during flares are inadequate as they do not consider the Veteran’s description of limitations. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Overall, when considering the Veteran’s statements concerning his bilateral ankle symptomatology along with the above-noted objective findings of limited ankle motion and functional impairment/loss, and by resolving all reasonable doubt in favor of the Veteran, the Board finds that the limitation of the ankles motion demonstrated throughout the rating period more nearly approximates “marked” limitation. 38 C.F.R. §§ 4.40, 4.45, 4.59. Therefore, the criteria for a 20 percent rating under DCs 5003-5271 are met for the entire rating period. A 20 percent rating is the maximum rating available under DC 5271. A rating in excess of 20 percent for his bilateral ankle disabilities is not warranted under any other potentially applicable rating criteria pertaining to the ankle. Indeed, a rating in excess of 20 percent is not warranted under DC 5270 (for ankle ankylosis) or DC 5272 (for ankylosis of the subastragalar or tarsal joint) because the evidence does not demonstrate ankylosis or ankylosis of the subastragalar or tarsal joint for the left ankle as affirmed during all three VA examinations. Notably, as the maximum rating for limitation of motion has been assigned, there is no further basis for consideration of functional impairment on use (or need for curative VA examination with regard to the inadequacy of evaluating functional impairment). See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (consideration of 38 C.F.R. §§ 4.40 and 4.45 is unnecessary where an appellant is in receipt of the maximum rating for limitation of motion) As such, a 20 percent rating for bilateral ankle DJD is granted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003-5271 (2017). TDIU The Veteran contends that his bilateral ankle conditions render him unable to obtain and maintain substantially gainful employment, as he last worked in October 2016. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, that if there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. However, if the percentage ratings of 38 C.F.R. § 4.16(a) are not met but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability or disabilities, an “extraschedular TDIU” may be assigned and the case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age, or to the impairment caused by non-service-connected disabilities. Id. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Additional considerations are noting that for a TDIU, marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.17. The Board took jurisdiction of the issue of entitlement to a TDIU at the June 2018 hearing, pursuant to Rice v. Shinseki, which noted that a TDIU claim cannot be considered separate and apart from an increased rating claim, but rather as part of a claim for benefits for the underlying disability. Rice, 22 Vet. App. 447 (2009). As the record stands now, the Veteran is service-connected for two disabilities, bilateral DJD of the ankles. The Veteran’s combined evaluation inclusive of the aforementioned grant for increase is 40 percent. Per 38 C.F.R. § 4.16, if the Veteran has more than one service-connected disability, he would need to possess at least one disability ratable at 40 percent or more, and additional disabilities which bring his combined total to 70 percent or more to meet the schedular criteria for a TDIU. At present, the Veteran’s combined 40 percent evaluation does not meet the schedular criteria, and thus a consideration of a TDIU on the merits is not warranted. 38 C.F.R. § 4.16(a) (2017). Moreover, the Board does not find that referral for extraschedular consideration is warranted, as the evidence does not show that the Veteran is unable to secure of follow substantial gainful occupation by reason of service-connected disability. The Veteran has earned a high school degree and completed one year of college courses. He has vocational experience as a bus boy/dishwasher, construction laborer, driver, bartender, and resident manager at a homeless shelter involving paperwork, computer input and appointment making. The Veteran reports a couple of times per month his ankles impede some, but not all activities on the job while working as a residential manager. Additionally, the most recent VA examiner stated that the Veteran’s condition affects his employment, but does not entirely preclude as the Veteran would still be able to work in a field that did not require extensive standing or walking for long periods of time. He has shown the capability of performing a sedentary job involving paperwork, computer input and appointment making. Thus, the lay and medical opinion shows that the Veteran possesses the training, experience and education necessary to perform a sedentary occupation such as he has performed in the past. In conclusion, while the Board does not wish to minimize the nature and extent of the Veteran’s service-connected disabilities, the evidence of record does not support his claim that the service-connected disabilities are sufficiently severe to produce unemployability when considering his past work history, office skills and educational background. Although his bilateral ankle disabilities exhibit a degree of impairment, the evidence does not reflect that gainful employment is precluded solely due to that service-connected disability. To the extent the Veteran is limited by his service-connected disabilities, any such limitation is found to be contemplated in, and is being adequately compensated by, the current disability rating assigned for his service-connected disabilities. Accordingly, for the reasons set forth above, entitlement to a TDIU has not been established on either a scheduler or extraschedular basis, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 4.16(b). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel