Citation Nr: 20073495 Decision Date: 11/17/20 Archive Date: 11/17/20 DOCKET NO. 14-12 663 DATE: November 17, 2020 ORDER Entitlement to a separate extraschedular rating of 10 percent, but no greater, for right ankle sprain residuals causing instability, is granted. Entitlement to a separate extraschedular rating of 10 percent, but no greater, for left ankle ligamentous injury residuals causing instability, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In July 2017, the Acting Director of the Compensation Service denied entitlement to extraschedular ratings for right and left ankle disabilities. 2. In addition to marked limitation of motion, the Veteran’s right and left ankle disabilities manifest with symptoms of instability, recurrent dislocation, causing limitations on walking ability and marked interference in the Veteran’s occupational functioning, and this presents such an exceptional or unusual disability picture that the available schedular evaluation is inadequate. CONCLUSIONS OF LAW 1. The criteria for a separate extraschedular rating of 10 percent, but no greater, for right ankle sprain residuals causing instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.20, 4.71a, Diagnostic Codes 5257, 5271. 2. The criteria for a separate extraschedular rating of 10 percent, but no greater, for left ankle ligamentous injury residuals causing instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.20, 4.71a, Diagnostic Codes 5257, 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1977 to September 1983. This case comes to the Board of Veterans’ Appeals (Board) from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office. In a November 2015 decision, the Board denied disability ratings in excess of 20 percent for right and left ankle disabilities and remanded claim of entitlement to a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2016, the Court granted a Joint Motion for Partial Remand, which vacated the portion of the Board’s decision that denied evaluations in excess of 20 percent for right ankle sprain and left ankle ligamentous injury residuals. In December 2016, the Board remanded these issues to the Agency of Original Jurisdiction (AOJ) for additional development. Entitlement to ratings higher than 20 percent for right and left ankle sprain residuals on a schedular basis was denied in an April 2017 Board decision. The issues of entitlement to higher ratings on an extraschedular basis were remanded for referral to the Director of the Compensation and Pension Service. The issues of entitlement to higher ratings on an extraschedular basis as well as entitlement to a TDIU were again remanded in February 2018 for further development. The issue of entitlement to service connection for PTSD was also remanded by the Board in November 2015 for additional development. The Board notes that the actions requested in the November 2015 remand with regard to the appeal for service connection for PTSD have not been fully completed, and this issue will be addressed at a later date. Right and Left Ankle Extraschedular Ratings In April 2017, the Board denied the Veteran’s claims for higher ratings for his ankle disabilities on a schedular basis, but found that the evidence had raised symptoms, specifically instability in both ankles, which were not contemplated by the schedular rating criteria. The issues of entitlement to higher ratings on an extraschedular basis only were therefore remanded for referral to the Director of Compensation and Pension Service. See 38 C.F.R. § 3.321(b)(1). To determine whether an extraschedular evaluation is warranted, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate and whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Thun v. Peake, 22 Vet. App. 111 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if a 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). In July 2017, the Director of Compensation Service issued an Administrative Review that found that the Veteran’s bilateral ankle disability, specifically pain and limitation of motion of the ankles, had been taken into account and was considered in the application of the relevant criteria in the rating schedule. It stated that the Veteran’s functional impairment was consistent with the currently assigned evaluations, and he did not require hospitalization. Because the Acting Director of Compensation Service determined that an extraschedular evaluation was not warranted, the Board now has jurisdiction to decide the question of entitlement to an extraschedular rating the merits. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015); Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). The Board notes that it does so while placing no weight on the findings of the Acting Director of Compensation Service, as that is a non-binding administrative determination and does not constitute medical evidence. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has been assigned 20 percent ratings for each ankle disability under Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a maximum 20 percent evaluation is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Higher schedular ratings are only available when there is ankylosis of the ankle or malunion/nonunion of the tibia and fibula. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5270. In an April 2017 Board decision, the Board found that the Veteran’s right and left ankle disabilities did not result in ankylosis or malunion or the tibia or fibula, and he was therefore already in receipt of the maximum schedular ratings available. While ratings higher than 20 percent cannot be assigned based on the schedular criteria, the Board accepts that the Veteran’s ankle disabilities have manifested with symptoms outside of the schedular criteria for rating the ankles and outside of “governing norms” that are typical of a bilateral ankle disability. The Veteran has submitted statements stating that his ankle disabilities prevent him from being able to work. The Veteran has reported that he requires braces on both his ankles and a cane in order to walk due to his ankle instability. His VA treatment records show frequent complaints of ankle pain and weakness, and he has reported falling due to his ankle and feeling at risk for more falls. At all VA examinations, the Veteran has found to have greatly impaired walking due to his ankles. At the June 2010 VA examination, he reported instability, weakness, and stiffness. The Veteran was found to have a history of instability and dislocation at both the February 2017 VA examination. He was able to walk a fourth of a mile. The Veteran most recently attended a VA examination in September 2018. The Veteran was again found to have instability in both ankles, and he was found to be less competitive professionally in any job requiring walking or standing due to his ankle disabilities. The examiner wrote that the Veteran would have difficulty walking or standing in one place. The Veteran was limited to walking one block or less or standing for more than 10 minutes. After reviewing all of the evidence of record, the Board finds that the Veteran has symptoms of instability and dislocation of the bilateral ankles, and that these symptoms are not contemplated by the Rating Schedule. The Veteran’s symptoms of pain and limitation of motion are encompassed by the schedular criteria, including his flare ups of pain which cause weakness and functional impairment. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The diagnostic code pertaining to the ankles does not allow for any rating higher than 20 percent unless ankylosis is present. 38 C.F.R. § 4.71a, Diagnostic Code 5214. In this case, however, the Veteran has clinically documented additional symptomatology which causes significant impact on his functioning, including causing interference with work and his ability to perform activities of daily life, and these symptoms are not reasonably described in the rating criteria. His ankle instability and dislocations cause him to have difficulty with walking or standing, and is has caused him to fall and feel at risk of falling. The Board notes that the rating criteria for the knee does allow for an additional evaluation to be assigned when a knee joint has both limitation of motion and lateral instability. 38 C.F.R. § 4.71a , Diagnostic Codes 5257, 5260, 5261. While no such provision has been made for other joints, the Board finds that in this particular case, the Veteran’s ankle instability is a significant impairment which presents an exceptional or unusual disability picture which renders impractical the application of the regular schedular standards, and similar to the 10 percent ratings which are allowed for slight lateral instability in the knees, the Board finds that extraschedular 10 percent ratings for instability in the ankles can be assigned. See 38 C.F.R. §§ 3.321(b)(1). The Board therefore raises the Veteran’s current evaluation, on an extraschedular basis, by allowing for additional 10 percent ratings for instability in both the right and left ankles. The Board does not find, however, that additional extraschedular ratings higher than 10 percent are warranted. An extraschedular rating is determined based on the average impairment in earning capacity resulting from the unique disability picture. Because the nature of extraschedular consideration requires that the disability picture be unique and not contemplated by the rating schedule, there is no guidance as to the specific rating that should be assigned in any particular case. See Floyd v. Brown, 9 Vet. App. 88, 97 (1996). The Board has sought to match the level of impairment caused by these extraschedular symptoms to the level of severity contemplated by rating criteria for other similar disability symptoms. The Veteran does retain the ability to walk for short distances or stand for short periods. While he uses braces and a cane, these devices do help him to be able to ambulate sufficiently to complete all activities of daily living, as well as some outside activities such as attending appointments and shopping, even if the frequency of doing these activities is decreased. The Board finds that the Veteran retains enough industrial capacity of his ankles and lower extremities that additional ratings higher than 10 percent are not warranted. Although Diagnostic Code 5257 was intended to apply only to instability of the knees, the Board that it does provide some guidance in how to evaluate instability in a lower extremity joint. Because there is no objective medical evidence that the Veteran’s ankle instability has been at least “moderate,” or manifesting in impairment equivalent to moderate instability, the Board finds that additional extraschedular ratings higher than 10 percent are not warranted. See 38 C.F.R. § 4.20, 4.71a, Diagnostic Code 5257. In sum, the Board finds that the Veteran’s right and left ankle disabilities are not reasonably described by the rating criteria and present an exceptional or unusual disability picture which causes instability, recurrent dislocation, and marked interference in the Veteran’s occupational functioning. Accordingly, separate extraschedular evaluations of 10 percent for right ankle instability and 10 percent for left ankle instability are granted. REASONS FOR REMAND TDIU In February 2018, the Board found that the issue of entitlement to a TDIU had been raised as part of the claim for increased ratings for his ankle disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board then remanded this issue together with the claims for extraschedular ratings for the ankles because development of the TDIU claim could impact the extraschedular rating claims. While it does appear that the instructions in the Board’s February 2018 remand have been completed regarding development of the TDIU claim, a Supplemental Statement of the Case has not yet been issued. The September 2020 Supplemental Statement of the Case listed the issue of entitlement to a TDIU, but stated that it would be considered under the Veteran’s appeal of the claim for service connection for posttraumatic stress disorder (PTSD). Because the claim of entitlement to a TDIU was found to be raised in conjunction with the ankle disability claims, however, the Board finds that it is appropriate to address it at this time and to remand it again to ensure that all development is completed. (Continued on the next page) The matter is REMANDED for the following action: Adjudicate the claim for TDIU. If the benefit sought on appeal is denied, provide a Supplemental Statement of the Case to the Veteran and his representative. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary E. Rude, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.