Citation Nr: 18159547 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 13-15 556 DATE: December 20, 2018 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected residuals of closed right ankle fracture of distal fibula is denied. Entitlement to a disability rating in excess of 20 percent for service-connected reflex sympathetic dystrophy (RSD) of the right foot and ankle, prior to December 5, 2016, is denied. Entitlement to a disability rating of 40 percent, but no higher for service-connected RSD of the right foot and ankle, from December 5, 2016, is granted. REMANDED ISSUES Entitlement to an initial rating in excess of 10 percent for the period from November 25, 2005 to March 24, 2008, in excess of 30 percent for the period from August 1, 2009 to April 15, 2010, in excess of 50 percent for the period from April 15, 2010 to May 26, 2011, and in excess of 70 percent for the period from July 1, 2011 for Posttraumatic Stress Disorder (PTSD) with persistent depressive disorder (previously rated as anxiety disorder not otherwise specified (NOS)) is remanded. Entitlement to a total disability individual unemployability (TDIU) rating is remanded. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum rating for limitation of motion of the right ankle; and, there is no evidence that the residuals of the right ankle fracture result in ankylosis or impairment of the tibia and fibula with nonunion or malunion. 2. The Veteran’s RSD of the right foot and ankle is manifested by no more than severe incomplete paralysis of the posterior tibial nerve prior to December 5, 2016. 3. The Veteran’s RSD of the right foot and ankle is manifested by symptomatology most closely resembling no more than moderately severe incomplete paralysis of the sciatic nerve from December 5, 2016. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residuals of closed right ankle fracture of distal fibula with limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107 (2012), 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code (DC) 5271 (2018). 2. The criteria for a disability rating in excess of 20 percent for RSD of the right ankle and foot, prior to December 5, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.124(a), DC 8525. 3. The criteria for a disability rating of 40 percent, but no higher for RSD of the right ankle and foot, from December 5, 2016, have been met. 38 U.S.C. §§ 1155, 5107; C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.124(a), DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2002 to November 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2010 and February 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned in a Board videoconference hearing in January 2016. A transcript of this hearing is of record. This matter was remanded in June 2016 for further development, to include obtaining new VA examinations and treatment medical records. Such examinations and records were obtained. See Stegall v. West, 11 Vet. App. 268 (1998). Since the Remand, neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) and Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). For clarity, the Board notes alteration in the characterization of the issues on appeal. The Board originally listed the claims for the ankle and RSD as initial ratings claims. Fenderson v. West, 12 Vet. App. 119 (1999). However, closer inspection of the record indicates that the June 2006 Rating Decision initially granting service connection for these conditions became final in June 2007. As a result, these issues are considered ones for increased rating stemming from the date of claimed worsening, here the September 2010 claim for TDIU. See Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, the Board has recharacterized the claim for initial increased rating for a psychiatric disorder to reflect that the initial grant of service-connection for an acquired psychiatric disorder (now characterized as PTSD) occurred in a March 2010 Rating Decision and not a May 2010 Rating Decision. This distinction is important, as within the March 2010 decision, the Veteran was awarded a 10 percent rating effective November 25, 2005, a 100 percent temporary total rating (TTR) for hospitalization from March 24, 2008, and a 30 percent rating from August 1, 2009. Thereafter, in the May 2010 Decision, the RO increased the Veteran’s rating from 30 percent to 50 percent disabling effective from August 15, 2010. The listed issue now reflects those additional ratings and periods. Finally, while pending return to the Board, the RO, in November 2017, awarded a TTR from May 26, 2011 and a 70 percent rating from July 1, 2011. The Veteran has continued his appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2018). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2018); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for that disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. See 38 C.F.R. § 4.7. “Pyramiding,” that is, the rating of the same disability or the same manifestation of a disability, under different diagnostic codes, is impermissible when rating a veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury, which would permit rating under several diagnostic codes. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. The “amputation rule” set forth at 38 C.F.R. § 4.68 provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. In this case, the right lower extremity has combined ratings of 40 percent for the period prior to December 5, 2016, and by virtue of the decision herein, a 50 percent rating for the period from December 5, 2016. See 38 C.F.R. § 4.25. Amputation of the foot (or below the knee at a lower level) warrants a 40 percent rating. See DC 5165 and 5167. 1. Entitlement to a rating in excess of 20 percent for residuals of closed right ankle fracture of distal fibular with limitation of motion. The Veteran’s right ankle condition was evaluated pursuant to DC 5271. 38 C.F.R. § 4.71a. He is already in receipt of the maximum rating allowable under DC 5271, which is a 20 percent rating for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. As the Veteran is now in receipt of the maximum rating allowable based on limitation of motion, consideration of 38 C.F.R. §§ 4.40, 4.45 is not necessary. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Higher ratings could potentially be achieved under DC 5262 and DC 5270. DC 5262 provides a 40 percent rating for impairment of the tibia and fibula with nonunion and loose motion requiring a brace; and a 30 percent rating with malunion and marked knee or ankle disability. The Rating Schedule does not define the terms “marked,” “moderate,” and “mild,” and VA evaluates all of the evidence such that decisions are “equitable and just.” 38 C.F.R. § 4.6 (2018). DC 5270 provides a 40 percent for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity; and a 30 percent rating for ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. Turning to the evidence, the Veteran was afforded a VA examination in January 2011. The range of motion of his right ankle was measured as plantar flexion from 0 to 45 degrees and dorsiflexion from 0 to 20 degrees. The examiner found that the Veteran had functional loss or impairment of his ankle that manifested through pain and decreased mobility. There were no findings of ankylosis or malunion or nonunion in the ankle. The Veteran was afforded a second VA Examination in January 2017. On examination he reported suffering from increased pain with swelling and being unable to climb stairs. The range of motion of his right ankle was measured as plantar flexion from 0 to 20 degrees and dorsiflexion from 0 to 5 degrees. Pain was noted on weight bearing and rest/non-movement in both dorsiflexion and plantar flexion. Examination was negative for instability, dislocation, malunion or nonunion, or ankylosis. The Veteran did not attend his scheduled diagnostic testing. Treatment records consistently indicate ankle joint pain, but are negative for diagnosed ankylosis or evidence of malunion or nonunion. See 2010 to 2018 VAMC Treatment Medical Records. Correspondingly, the Veteran did not report suffering from such conditions on January 2016 Board Hearing. Based on the above, the evidence does not support a rating in excess of 20 percent for any portion of the period on appeal. A 20 percent rating is the maximum rating possible under DC 5271, thus a higher rating may not be assigned under this code. Further, while on-going pain has been noted, there is no evidence of any ankylosis or impairment of the tibia and fibula with nonunion or malunion. There is no basis for contemplation of higher ratings under the criteria for DC 5262 or 5270. The Board has considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to his through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of this disorder according to the appropriate DCs. Comparatively, competent evidence of the nature and extent of the Veteran’s disabilities was provided by medical professionals. The Board affords these competent medical opinions have greater probative value. In sum, the benefit of the doubt rule is not applicable and a rating in excess of 20 percent is not warranted. 2. Entitlement for a rating in excess of 20 percent for service-connected RSD of the right foot and ankle. The Veteran seeks increased rating for his right foot and ankle RSD. He is rated under DC 8525 as 20 percent disabled. DC 8525 provides ratings based on paralysis of the posterior tibial nerve. The maximum, a 30 percent rating, is warranted for complete paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; plantar flexion is impaired. 38 C.F.R. § 4.124a, DC 8525 (2018). As will be addressed below, another potentially applicable code is DC 8520. Under DC 8520, a 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. The next higher evaluation of 60 percent requires severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent evaluation requires complete paralysis of the sciatic nerve, in which the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Turning to the record, in January 2011, the Veteran was afforded a peripheral nerve VA examination. On examination, he reported suffering from a burning sensation, “like [his] foot was on fire.” He reported reddening of his foot associated with this sensation. He reported that he treated his foot condition with hot and cold soaks. He denied balance or coordination problems. He reported being scared to walk and being constantly cautious. He reported that his circulation problems were so bad it felt as if he had a belt wrapped around his foot when even simply tying his shoes. Symptoms were not present on examination. He reported previously undergoing three sympathetic nerve blocks for his right foot RSD and that they helped “tremendously.” Muscle tone, reflex, sensory, and motor examination were normal, however the Veteran reported dysesthesias over the right foot. There was no evidence of atrophy, abnormal gait, imbalance or tremor, fasciculations, or function of the joint being affected by the nerve disorder. Hair loss was noted on the right toes compared to the left. Right foot skin was minimally/negligibly increased compared to the left, without breakdown, ulcers, abnormal pressure points, or calluses. The Veteran was observed to put on socks without any objective evidence of pain or increased sensitivity. He was also able to tolerate wearing socks without causing dysesthesia. The examiner noted that at the time of examination there was no objective evidence of peripheral neuropathy on examination. The collective impairment associated with the Veteran’s RSD and ankle condition was an inability to run with his dog or ride his bike. On January 2016 Board Hearing, the Veteran reported he had not been evaluated for his ankle condition since 2011 VA Examination. He reported seeing his doctor as needed. He denied using a brace for his RSD as the brace caused additional pain and uncomfortable sensation. He reported increased nerve pain and loss of range of motion. He reported right foot hair loss and that his right foot was smaller, bonier, and paler than his left foot. He believed that blood did not recirculate quickly to his right foot, and reported loss of sensation in his right foot to the point of not noticing he broke his toe. He reported taking medication three times a day. He indicated that the record, beyond his lay assertions, would not establish worsening in his condition as after 2011 he did not seek specific treatment. In December 2016, the Veteran underwent a second peripheral nerve conditions examination. On examination, he reported sensory loss of the plantar and dorsal surface with tingling. He reported slight muscle spasms in the leg and foot and sharp pain at night. Treatment included methocarbamol. Symptoms noted were moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. Ankle plantar flexion in muscle strength testing was 4/5 meaning active movement against some resistance and ankle dorsiflexion was 3/5 meaning active movement against gravity. There was no muscle atrophy. The ankle was hypoactive. Sensory examination documented decreased sensation in the foot and toes, with hyperesthesia in the dorsal and plantar foot. There was hair loss to the right dorsal foot compared to the left. Gait was antalgic due to right ankle/pain. Nerve impairment was found in the sciatic and posterior tibial nerves. Both were noted as having incomplete paralysis of moderate severity. The Veteran noted the occasional use of a cane for his ankle neuropathy conditions. The examiner opined that the Veteran’s condition was not equivalent to the loss of function such that amputation with prosthesis was warranted. Overall the functional impairment of the Veteran’s RSD was noted to cause an inability to stand/ambulate for extended periods. Following consideration of the record, the Board finds that entitlement to an increased rating under DC 8525 is not warranted. The record is negative for indication of complete paralysis of the posterior tibial nerve with paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature; were toes could not be flexed; adduction was weakened; plantar flexion was impaired. Therefore, a 30 percent rating under DC 8525 is not warranted for any portion of the period on appeal. However, the Board finds that from December 5, 2016, the Veteran’s date of VA examination, a 40 percent rating is warranted under the alternate DC of 8520. Alteration of the code is warranted and allowable as DC 8525 offers a broader and higher potential range of ratings. Of note, the 40 percent rating being provided to the Veteran exceeds the maximum rating achievable under his current code DC 8525. See Butts v. Brown, 5 Vet. App. 532, 539 (1993). In the instant case, separate ratings under DC 8520 and DC 8525 would constitute impermissible pyramiding as there is an overlap in symptomatology and location of disability. The Board has selected the award to begin in December 5, 2016, as it is the date of the VA examination wherein the Veteran was first documented to suffer from moderate impairment of the sciatic and posterior tibial nerves due to his RSD. Prior to this period, the record including clinical and examination evidence, is negative for documentation of such impairment. Notably, on 2011 examination the examiner found that the Veteran did not demonstrate peripheral neuropathy symptomatology. To that end, the 2016 VA examination report overall reflects symptomatology more severe than listed on VA examination in 2011. On 2011 examination, the Veteran was noted as only being unable to run or ride a bicycle. That impairment was due jointly to his residuals of fracture and RSD. Comparatively, on 2016 examination, his inability to stand/ambulate for extended periods was due solely to his RSD. Further, as stated in 2016, unlike 2011, there was clear objective evidence of not just neurological impairment, but documented moderate incomplete paralysis in two nerves. Given the above increased symptomatology represented by VA Examination and the Veteran’s credible reports, the Board feels that the combined effect of the Veteran’s RSD condition is more akin to a moderately severe rating than merely moderate. Finally, a rating in excess of 40 percent requires atrophy or complete paralysis. Neither atrophy nor complete paralysis have been found by a medical professional including, examiners, throughout the period on appeal. Moreover, the Veteran still reports active movement. In sum, prior to December 5, 2016 a rating in excess of 20 percent is not warranted under DC 8525 and not applicable under DC 8520. However, from December 5, 2016 a 40 percent rating, but no higher, is warranted under DC 8520. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for the period from November 25, 2005 to March 24, 2008, in excess of 30 percent for the period from August 1, 2009 to April 15, 2010, in excess of 50 percent for the period from April 15, 2010 to May 26, 2011, and in excess of 70 percent for the period from July 1, 2011 for PTSD with persistent depressive disorder is remanded. On December 2016 VA examination, the Veteran reported to the examiner that he attempted suicide two weeks earlier. He reported intentionally driving his car into the back of an “18 wheeler.” As evidence, the Veteran showed photographs and a hospitalization record from a private facility to the VA examiner. These pieces of evidence are not of record. A remand is required to obtain these treatment records and documentary evidence. 2. Entitlement to a TDIU rating. The claim for entitlement to TDIU was originally remanded as inextricably intertwined with the pending claims for increased rating. The Board still considers this matter to be inextricably intertwined with the pending claim for PTSD. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Nevertheless, prior to returning to the Board clarification must be obtained regarding the Veteran’s current level of employment. For clarity, the Board notes that total disability means that there is an impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation “provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days” actually worked. Faust v. West, 13 Vet. App. 342 (2000). It does not encompass positions of marginal employment where annual income does not exceed the poverty threshold for one person or where annual income exceeds this threshold because the employment is in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16 (a). In sum, being employed in-and-of itself does not always preclude entitlement to TDIU. Rather, a primary question is whether that employment can be considered substantially gainful. In the instant case, the record reflects the Veteran is working as a Veteran’s Advocate. In 2018, the RO attempted to clarify the nature and salary of this position by requesting the Veteran complete a VA Form 21-8940 titled Veteran’s Application for Increased Compensation Based on Unemployability. See July 2018 Correspondence. However, no updated VA Form 21-8940 is of record. That said, there is some indication that the Veteran mistook the VA Form 21-8940 to be a request to opt into the Rapid Appeals Modernization Program (RAMP). See July 2018 Report of General Information VA Form 27-0820. Per telephone call, the Veteran informed the RO that he felt harassed by the repeat mailing requests for RAMP and that he would not be filling out a RAMP form. Instead he requested to continue his appeals through the normal appeal process. Given, the potential for misunderstanding and the need for additional information regarding employment, a second attempt should be made by the RO to obtain a completed VA Form 21-8940. The matters are REMANDED for the following action: 1. The RO must contact the Veteran and ask him to provide a complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The RO must indicate to the Veteran that clarification is required as to the length, nature, and salary associated with his position as a Veteran’s Advocate, as well as any other forms of employment during the appeal period. The RO must also specify that providing such information does not represent a new claim, but is instead necessary for proper adjudication of his current still pending claim for TDIU. 2. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. The Board is particularly interested in copies of the Veteran’s treatment medical records from his hospitalization at Our Lady of Regional Medical Center, Baton Rouge, LA following his reported attempted suicide in December 2016. Also request any other documentary evidence supporting his reported motor vehicle collision. With the Veteran’s assistance obtain copies of any pertinent records and add them to the claims file. If VA attempts to obtain any outstanding records which are unavailable, the Veteran and his representative should be notified. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel