Citation Nr: 1808316 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-18 510A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating higher than 10 percent prior to August 28, 2017, and a rating higher than 20 percent thereafter for degenerative arthritis, right ankle, exclusive of periods during which the Veteran received temporary total ratings. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 6, 2015. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1984 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO granted service connection for degenerative arthritis, right ankle, and assigned a 10 percent rating effective the October 6, 2010 date of claim. The Veteran timely disagreed with the initial rating assigned. In the Veteran's July 2013 substantive appeal, he requested a Board hearing before a Veterans Law Judge. In March 2017, the Veteran withdrew his hearing request. Accordingly, the hearing request is deemed withdrawn. During the pendency of the appeal, the RO assigned multiple periods of temporary total ratings based on right ankle surgery necessitating convalescence pursuant to 38 C.F.R. § 4.30. The first period was effective from August 29, 2013 to December 1, 2013. See rating decision dated March 2014. The second period was effective from August 29, 2014 to December 1, 2014. See rating decision dated October 2014. The third period was effective from July 6, 2015 to October 1, 2015. See rating decision dated September 2015. The Veteran received the maximum schedular ratings during the periods of convalescence following surgeries for his service-connected right ankle disability; therefore, there is no issue in controversy for these time periods. In June 2017, the Board remanded the Veteran's claim for further evidentiary development. In December 2017, the Decision Review Officer (DRO) increased the assigned rating for the degenerative arthritis, right ankle to a 20 percent, effective August 28, 2017. This created staged ratings, as indicated on the title page. The Veteran has not expressed satisfaction with the increased disability rating; this issue thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). During the pendency of the appeal for an initial higher rating for the right ankle disability, the Veteran filed a formal TDIU indicating that he has been unemployed since July 31, 2014, due to his service-connected right ankle disability. See Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) dated April 2015. In a September 2015 rating decision, the RO granted entitlement to TDIU on an extraschedular basis, effective April 6, 2015. The effective date assigned by the RO was based on the date of the formal claim for a TDIU. However, the issue of entitlement to a TDIU is raised as part and parcel of an initial rating claim when the Veteran seeks the highest rating and there is evidence of unemployability due to the disability for which a higher initial rating is being sought. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, since the appeal period for the claim for a higher initial rating for the right ankle disability begins October 6, 2010, the issue of entitlement to TDIU prior to April 6, 2015, is before the Board. The issue of entitlement to TDIU prior to April 6, 2015, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to August 28, 2017, the evidence is at least evenly balanced as to whether the Veteran's symptoms of the right ankle have more nearly approximated marked limitation of motion. 2. Since August 28, 2017, the Veteran's symptoms of the right ankle has manifested by marked limitation of motion with no evidence of ankylosis of the right ankle. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, prior to August 28, 2017, the criteria for an initial rating of 20 percent, but no higher, for degenerative arthritis, right ankle, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5003- 5271 (2017). 2. Since August 28, 2017, the criteria for a rating higher than 20 for degenerative arthritis, right ankle, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5003-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Neither the Veteran nor his representative has raised any 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)." II. Higher Initial Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, 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 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this case, Veteran is currently assigned a 10 percent rating prior to August 28, 2017, and 20 percent thereafter, exclusive of periods during which he received temporary total ratings, under 38 C.F.R. § 4.71a, DCs 5003- 5271. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes 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 diagnostic code is shown after the hyphen). X-ray reports of record document right ankle degenerative changes attributed to the Veteran's initial ankle injury. Under DCs 5003 and 5010, degenerative or traumatic arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved, which in this case is the ankle. Under DC 5271 (ankle, limited motion of), marked limitation of motion in the ankle warrants a 20 percent disability rating, and moderate limitation of motion in the ankle warrants a 10 percent disability rating. See 38 C.F.R. § 4.71a, DC 5271. Twenty percent is the maximum disability rating under this DC. While the schedule of ratings does not provide any information as to what manifestations constitute "moderate" or "marked" limitation of ankle motion, guidance can be found in VBA's M21-1 Adjudication Procedures Manual. Specifically, the M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k. Normal range of motion for the ankle is defined as follows: dorsiflexion from zero to 20 degrees; and plantar flexion from zero to 45 degrees. See 38 C.F.R. § 4.71, Plate I. Turning to the evidence of record, in a March 2011 private x-ray report and March 2011 private treatment reveals chronic right ankle instability with pain secondary to previous trauma. In May 2012, the Veteran was afforded an examination. He reported that his sitting and walking are limited, due to his right ankle pain. He stated that he is unable to run or do weightbearing exercises. He has flares ups, which limit his ability to stand for prolong periods. He stated that he is employed as a machinist and is on his feet all day Upon physical examination, ranges of motion of the right ankle were recorded as plantar flexion to 41 degrees with pain and dorsiflexion to 12 degrees with pain. Upon repetitive-use testing, ranges of motion of the right ankle were recoded as plantar flexion to 40 degrees and dorsiflexion to 10 degrees. There was functional loss and functional impairment in terms of pain on movement. Muscle strength was normal. There was right ankle right ankle instability. The examiner indicated that there was no evidence of ankylosis or subtalar and/or tar al joint. The VA examiner diagnosed right ankle sprain, recurrent, with degenerative joint disease (DJD). The examiner opined that the Veteran's right ankle disability impacts his ability work. The examiner reasoned that the Veteran is a machinist and he is on his feet all day and therefore, he requires rest after 30 minutes of standing due to right ankle pain. In a September 2012 VA examination report, the Veteran reported right ankle pain upon standing. He denied flare-ups. Upon physical examination, ranges of motion of the right ankle were recorded as plantar flexion to 35 degrees with pain and dorsiflexion to 15 degrees with pain. There was no change of ranges of motion upon repetitive-use testing. There was functional loss and functional impairment in terms of less movement than normal; pain on movement; and interference with sitting, standing, and weight-bearing. Muscle strength and instability testing were normal. There was no ankylosis. The examiner diagnosed degenerative arthritis of the right ankle. The examiner opined that the Veteran's right ankle disability impacts his ability work. The examiner reasoned that the Veteran has difficulty with walking and standing for extended periods of time. In a December 2014 VA examination report, the Veteran reported pain upon prolonged standing and running. Upon physical examination, ranges of motion of the right ankle were recorded as plantar flexion to 45 degrees with pain and dorsiflexion to 5 degrees with pain. There was no change of ranges of motion upon repetitive-use testing. There was pain with weight bearing and non-weight bearing. There was functional loss and functional impairment in terms of less movement than normal, pain on movement, swelling, instability, disturbance of locomotion, and interference with standing. The examiner indicated that pain, weakness, fatigability, incoordination significantly limit functional ability during flare-ups when joint is used repeatedly over time. However, the examiner was unable to provide an estimated range of motion during flare-ups. Muscle strength was normal. There was no muscle atrophy. The examiner indicated that the Veteran requires a right ankle brace and compression socks. The examiner diagnosed lateral collateral ligament sprain. The examiner opined that the Veteran's right ankle impacts his ability to perform occupational task tasks, such as prolonged walking and standing due to right ankle pain. In April 2015, the Veteran was afforded a VA examination. He reported right ankle pain, instability, burning, and aching. He indicated that he is unable to drive or walk for prolonged periods. He stated that he has right ankle flare-ups occurring 5 to 6 times a week lasting for three days. Upon physical examination in April 2015, ranges of motion of the right ankle were recorded as plantar flexion to 20 degrees with pain and dorsiflexion to 15 degrees with pain. There was no change of ranges of motion of the right ankle upon repetitive-use testing. The examiner diagnosed osteoarthritis of the ankle and instability of ankle. The examiner indicated that the examination was not conducted during a flare-up and he was unable to provide an opinion as to whether pain, weakness, fatigability or incoordination significantly limits functional ability upon flare-ups. The examiner indicated that there was functional loss and functional impairment in terms of less movement than normal, swelling, instability, disturbance of locomotion, and interference with standing. Muscle strength was 4/5. There was no muscle atrophy or ankylosis. The examiner indicated the Veteran required the occasional use of a right ankle brace. The examiner opined that the Veteran's right ankle impacts his ability to perform occupational task tasks, such as prolonged standing or walking. The examiner also stated that the Veteran is physically unable "to do his work as a machinist." He is unable to perform manual labor. In a June 2015 statement, the Veteran's father-in-law reported that the Veteran was having difficulties completing tasking during the course of his previous employment due to his right ankle disability. In September 2017, the Veteran was afforded an examination. He reported that he has difficulty with prolonged walking, jogging, and standing due to right ankle pain. He stated that he has right ankle flare-ups with throbbing, popping, and dull pains. The Veteran reported that in 2013, 2014, and 2015, he underwent right ankle tendon repair surgeries. Upon physical examination, ranges of motion of the right ankle were recorded as plantar flexion to 25 degrees with pain and dorsiflexion to 0 degrees with pain. Upon repetitive-use testing, ranges of motion were recorded as plantar flexion to 20 degrees and dorsiflexion to 0 degrees. The examiner indicated that the Veteran was unable to dorsiflex the right ankle due to the right ankle tendon repair. The examiner indicated that the examination was not conducted during a flare-up and estimated that ranges of motion during flare-ups would be plantar flexion to 10 degrees and dorsiflexion to 0 degrees. The examiner indicated that there was no ankylosis. There was right ankle pain and tenderness with no-weight bearing and passive and active ranges of motion were the same. The examiner diagnosed degenerative arthritis of the right ankle and status post-surgical tendon repair. The examiner opined that the Veteran's right ankle impacts his ability to perform occupational task tasks, such as prolonged standing or walking. The Board finds that prior to August 28, 2017, a 20 percent is warranted for degenerative arthritis, right ankle, and since August 28, 2017, a rating in excess of 20 percent is not warranted, as a 20 percent under DC 5271 is the maximum rating. Throughout the appeal period, the Veteran has consistently reported that he has right ankle flare-ups, which impair his ability to stand for prolong periods of time. The Veteran's ranges of motion of the right ankle were recorded, at worst to 20 degrees and dorsiflexion was to 0 degrees. Prior to August 28, 2017, there has been no examiner that was able to provide estimated ranges of motion during flare-ups. Importantly, the Veteran has consistently complained of right ankle pain and other symptoms that limit motion of his right ankle during flare-ups. Notably, the September 2017 VA examiner estimated that upon flare-ups ranges of motion of the right ankle would be limited to plantar flexion to 10 degrees and dorsiflexion to 0 degrees. Prior to August 28, 2017, while the examination reports of record did not determine to what extent the Veteran experienced additional functional loss, to include limitation of motion, during his frequent flare-ups of left ankle disability, he has consistently reported pain and inability to stand on for prolonged periods of time during flare-ups. Given the range of motion on testing and the additional loss of motion during flare-ups prior to August 28, 2017, the evidence is approximately evenly balanced as to whether the symptoms of the Veteran's right ankle disability more nearly approximate marked limitation of motion. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial rating for the Veteran's right ankle disability throughout the entire appeal period beginning October 6, 2010, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. This is the maximum schedular rating under DC 5271, the diagnostic code under which the Veteran's right ankle disability is rated. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Ratings higher than 20 percent for the ankle are available under DC 5270. Those ratings, however, require ankylosis. Throughout the appeal period, the evidence does not show that the Veteran has had ankylosis of the right ankle. To this end, VA examiners have consistently documented that the Veteran did not have right ankle ankylosis. Therefore, a higher rating for the Veteran's right ankle under DC 5270 is not warranted. While VA must, in some circumstances, consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, this rule does not apply where, as here, the Board has found that the maximum schedular evaluation based on limitation of motion is warranted, and that a higher rating would require the presence of ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Additionally, because range of motion findings cannot result in a higher rating, the holding in Correia v. McDonald, 28 Vet. App. 158 (2016), that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply, is not for application. For the foregoing reasons, prior to August 28, 2017, an initial 20 percent rating, but no higher, is warranted for the right ankle disability and a rating higher than 20 percent thereafter is not warranted. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. ORDER Entitlement to an initial rating of 20 percent, but no higher, prior to August 28, 2017, for degenerative arthritis, right ankle, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial rating higher than 20 percent for degenerative arthritis, right ankle is denied. REMAND 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 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. § 4.16(a) (2017). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. In April 2015, the Veteran filed a formal TDIU indicating that he has been unemployed since July 31, 2014. In a September 2015 rating decision the RO granted entitlement to TDIU, effective April 6, 2015. As noted, although a formal TDIU claim was filed in April 2015, the issue of entitlement to a TDIU is part and parcel of the claim for a higher initial rating for the right ankle with an appeal period beginning October 6, 2010. Thus, the date of claim for purposes of determining the effective date for the grant of TDIU in this case is October 6, 2010 and not April 6, 2015. Prior to April 6, 2015, the Veteran has consistently asserted that when he was employed as machinist he had difficulties working due to his service-connected right ankle disability. Furthermore, the Veteran has reported that he is unable to stand for prolonged periods of time due to his right ankle. He has explained that as a machinist, his job duties requiring standing all day. As noted above, VA examiners have found that the Veteran's right ankle disability impacts his ability to work. In particular, the April 2015 VA examiner stated that the Veteran is physically unable "to do his work as a machinist " and that he is unable to perform manual labor. The Veteran's combined schedular rating is 50 percent. Therefore, he does not meet the criteria for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). However, it is the policy of VA that all veterans unable to secure or follow a substantially gainful occupation by reason of service connected disability are to be rated totally disabled. 38 C.F.R. § 4.16(b). Where a Veteran does not meet the schedular standards, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In sum, medical evidence and Veteran's statements reveal that his service-connected ankle disability limits his ability to perform prolonged standing and manual labor. Notably, the Veteran's prior work history shows that he was employed as a machinist which requires manual labor. Therefore, a remand is necessary for consideration of referral to the Director of Compensation is warranted for consideration of a TDIU pursuant to 38 C.F.R. § 4.16(b) prior to April 6, 2015. The Board recognizes that the Director has already provided an opinion, and the RO may determine that an addition opinion is not required. However, the Board cannot grant a TDIU, or an earlier effective date for a TDIU, and is therefore compelled to remand the issue of entitlement to a TDIU prior to April 6, 2015. Accordingly, the claim remaining on appeal is REMANDED for the following action: 1. Adjudicate the issue of entitlement to a TDIU on an extraschedular basis prior to April 6, 2015, to include consideration of whether another referral to the Director of Compensation under 38 C.F.R. § 4.16(b) is warranted for this period of time. The date of claim for effective date purposes is the October 6, 2010 effective date for the grant of service connection for right ankle disability because the issue of entitlement to a TDIU is part and parcel of the claim for a higher initial rating for this disability. 2. If, after such consideration, entitlement to a TDIU prior April 6, 2015, remains denied, then provide the Veteran and his representative with a supplemental statement of the case and give them time to respond to it before returning the file to the Board for further consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs