Citation Nr: 20022159 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 12-34 765 DATE: March 31, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for right lower extremity neuropathy, peroneal nerve, is dismissed. Entitlement to an initial rating in excess of 10 percent for status post fracture of the right ankle is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran did not timely file a substantive appeal for the issue of entitlement to an initial rating in excess of 10 percent for right lower extremity neuropathy, peroneal nerve, following issuance of a September 2017 Statement of the Case (SOC). 2. For the entire appeal period, the service-connected status post fracture of the right ankle has been manifested by painful motion, productive of no worse than moderate limitation of motion, without demonstration of ankylosis, malunion of the os calcis or astragalus, or deformity. 3. The Veteran’s service-connected status post fracture of the right ankle and right lower extremity neuropathy of the peroneal nerve, even when considered in combination, have not been shown to preclude the Veteran from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for the Board to have jurisdiction to consider the merits of the claim of entitlement to an initial rating in excess of 10 percent for right lower extremity neuropathy, peroneal nerve, have not been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.20, 20.104. 2. The criteria for entitlement to an initial rating in excess of 10 percent for status post fracture of the right ankle have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.40, 4.71a, Diagnostic Codes 5270, 5271. 3. The criteria for entitlement to a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to July 1988 and had active duty for training (ACDUTRA) from October 1991 to February 1992. These matters come before the Board of Veterans’ Appeals from February 2010 (right ankle) and January 2011 (right lower extremity neuropathy, peroneal nerve) rating decisions by Department of Veterans Affairs (VA) Regional Offices (RO). The Board last remanded the issues on appeal in June 2017. A review of the record shows substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at an August 2016 hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Entitlement to an initial rating in excess of 10 percent for right lower extremity neuropathy, peroneal nerve. One of the threshold elements that the Board must address is the determination of appellate jurisdiction. See 38 C.F.R. § 20.103. The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue. See 38 C.F.R. § 20.104(b). Generally, the Board’s jurisdiction is grounded in an appeal having been filed on an issue, or issues, in controversy. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.104. If it does not have jurisdiction, the Board may dismiss that case or issue. See 38 C.F.R. § 20.104(b). An appeal of a rating decision consists of a timely notice of disagreement in writing and, after a SOC has been furnished, a timely filed substantive appeal (e.g., a VA Form 9). See 38 U.S.C. § 7105; 38 C.F.R. § 19.20. In June 2017, the Board remanded the issue of entitlement to an initial rating in excess of 10 percent for right lower extremity neuropathy, peroneal nerve, to the RO for the issuance of a SOC. The RO issued a SOC in September 2017 that included a VA Form 9 and instructions for filing if the Veteran decided to file a substantive appeal. However, the Veteran did not timely file a VA Form 9 as it pertains to this issue. Thus, the Board does not have jurisdiction to consider the issue of entitlement to an initial rating in excess of 10 percent for right lower extremity neuropathy, peroneal nerve. Accordingly, no appeal has been completed as to the issue, and the matter is dismissed. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.20, 20.104. Entitlement to an initial rating in excess of 10 percent for status post fracture of the right ankle. The Veteran seeks a higher rating for his service-connected status post fracture of the right ankle. See April 2010 Statement in Support of Claim. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (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. Pertinent regulations do not require that all cases show all findings specified by the 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; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled date, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The February 2010 rating decision on appeal granted service connection for status post fracture of the right ankle, and assigned a 10 percent initial evaluation effective August 5, 2009 under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5271. Under Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of motion of the ankle; a 20 percent rating is assigned for marked limitation of motion of the ankle. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Terms such as “mild,” “moderate,” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence so that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. While the schedule of ratings does not provide any information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, VA policy, in a proposed change to Diagnostic Code 5271, provides 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 82 FR 35719. VA noted that, “[a]s VA currently uses these standards to define marked and moderate, this change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel.” Id., at 35723. The Board finds the explanation of the proposed regulation to be persuasive because VA is expressing its intent to codify a policy that was employed to ensure more uniformity among its rating personnel. The rating period for consideration on appeal is from August 5, 2009. In December 2009, the Veteran was afforded an initial VA examination of his right ankle. The Veteran reported recurrent pain and swelling of his right ankle; and that he experienced pain and flare-ups when walking, standing, and going up stairs. See December 2009 VA examination. Upon examination, the VA examiner noted the Veteran’s range of motion as 15 degrees for dorsiflexion and 35 degrees for plantar flexion with pain as the main factor causing the limitation. Id. There was no additional limitation in range of motion of the ankle on repetitive use testing. Id. Additionally, there was no ankylosis, instability or arthritis. Id. In October 2010, the Veteran was afforded a second VA contract examination. The Veteran reported pain, instability, weakness, stiffness, swelling, fatigability and lack of endurance of his right ankle. See October 2010 VA examination. The Veteran reported flare ups with stairs, walking and running. Id. Upon examination, the examiner noted the Veteran’s range of motion as 20 degrees for dorsiflexion and 10 degrees after repetitive use testing; and 40 degrees for plantar flexion with no additional limitation in range of motion after repetitive use testing. Id. The examiner noted objective evidence of painful motion, edema, and tenderness on examination. Id. There was no ankle instability, arthritis, or ankylosis upon examination. Id. In October 2011, the Veteran reported pain in his right ankle since service that was aggravated by long periods of standing. See October 2011 VA treatment record. The examiner noted the Veteran had decreased dorsiflexion range of motion in his right ankle; however, the examiner did not provide the degrees or note any plantar flexion limitation of range of motion. Id. In August 2016, the Veteran testified before the undersigned Veterans Law Judge. The Veteran stated that his ankle condition had worsened since the October 2010 VA examination. See August 2016 Hearing Transcript. In August 2016, the Veteran testified before the undersigned Veterans Law Judge. The Veteran stated that his ankle condition had worsened since his last examination; that he could not stand or walk for very long; has trouble with climbing stairs; experiences swelling; alters his gait to avoid twisting his ankle; and cannot exercise or participate in other activities due to his ankle disability. See August 2016 Hearing Transcript. Based on his testimony, the Board previously remanded the Veteran’s case to the RO for additional development to determine the current severity of the Veteran’s ankle disability. The RO scheduled a VA examination in July 2019; however, the Veteran did not show for the scheduled examination. See July 2019 correspondence. The Veteran was notified of his missed scheduled VA examination. See September 2019 Supplemental Statement of the Case (SSOC). However, to date, no request to reschedule the VA examination has been received. Additionally, the Veteran’s representative asserted that the Veteran contends that his testimony and supporting evidence is sufficient despite not rescheduling a new VA examination. See March 2020 Appellate Brief. VA’s duty to assist in the development and adjudication of a claim is not a one-way street. See Sandhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a Veteran wishes help, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, the Veteran also has an obligation to assist in the adjudication of his claim, including appearing for scheduled VA examinations. Moreover, the Veteran was notified that failure to report to a VA examination, without good cause, could result in the denial of his claim. See June 2019 Notification Letter. Therefore, the Board finds that the RO has fulfilled its duties in this case with respect to attempting to afford the Veteran a new VA examination and informing him of the consequences of failing to attend such an examination. As such, a decision on the Veteran’s appeal must therefore be based on the evidence that is of record. See 38 C.F.R. § 3.655(b). In that regard, the Board finds that a disability rating in excess of 10 percent under DC 5271 is not warranted. The Veteran’s December 2009 and October 2010 VA examinations show that the Veteran’s right ankle dorsiflexion and plantar flexion more approximate moderate limitation of range of motion, including with pain. At worse, the Veteran’s dorsiflexion range of motion was limited by 10 degrees with repetitive use testing, and plantar flexion range of motion limited by 5 degrees. In October 2011, the Veteran reported pain in his right ankle since service that was aggravated by long periods of standing. See October 2011 VA treatment record. The examiner noted the Veteran had decreased dorsiflexion range of motion in his right ankle; however, the examiner did not provide the degrees or note any plantar flexion limitation of range of motion. Id. The Board acknowledges the Veteran’s lay statements regarding experiencing pain and instability. See August 2016 Hearing Transcript. Despite the Veteran’s report of weakness, fatigability and lack of endurance; the October 2011 VA examiner noted that the Veteran did not demonstrate fatigue, weakness, lack of endurance, or incoordination upon examination before or after repetitive use testing. Therefore, even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, and 4.45, the Board finds that the Veteran’s functional loss from his right ankle disability does not equate to more than the disability picture contemplated by the 10 percent rating. 38 C.F.R. § 4.71a, DC 5271. The Board has considered the other DCs pertinent to rating an ankle disability. A separate rating under DCs 5270, 5272, 5273, and 5274 is not warranted because there is no medical evidence of ankylosis, malunion of the os calcis or astragalus, or astragalectomy. See 38 C.F.R. § 4.71a. In sum, a preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 10 percent. The Board has considered the benefit-of-the-doubt rule; however, since the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. The Veteran, through his representative, contends a TDIU is warranted due to his service-connected right ankle fracture and right lower extremity neuropathy of the peroneal nerve. See March 2020 Appellate Brief. The Board notes that the issue was adjudicated and denied by the January 2011 rating decision; however, the Board finds that the issue was raised in connection with the claim for a higher initial rating for status post fracture of the right ankle. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). A TDIU can also be awarded on an extraschedular basis under 38 C.F.R. § 4.16(b), if it is determined that the veteran is unemployable by reason of service-connected disability, but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). However, the Board cannot consider such entitlement in the first instance. Instead, the claim must be remanded so that it can be referred to VA’s Director of Compensation Service for initial consideration. See Bowling v. Principi, 15 Vet. App. 1 (2001). Nevertheless, the Board may consider whether the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation such that referral of entitlement to a TDIU on an extraschedular basis is warranted under 38 C.F.R. § 4.16(b) prior to January 9, 2012. Here, the Veteran is service connected for status post fracture of the right ankle, rated at 10 percent disabling, effective August 5, 2009, and right lower extremity neuropathy of the peroneal nerve, rated at 10 percent disabling, effective December 15, 2009. The Veteran has, at most, a combined rating of 20 percent during the appeal period. Therefore, the Veteran does not meet the criteria for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). The Board finds that referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is not warranted. The Veteran previously indicated that he quit his job because he was unable to stand or walk without pain, see December 2009 VA examination; however, the evidence of record does not demonstrate the Veteran was precluded from all forms of substantially gainful employment. In that regard, the Veteran reported that he was able to secure a job in December 2009. See December 2009 VA treatment records. The Veteran also testified that he currently commutes to work and is still able to work. See August 2016 Hearing Testimony. Neither the Veteran, nor his representative, provided any argument or evidence that he is unable to secure or follow a substantially gainful occupation due to service-connected disability. See March 2020 Appellate Brief. Therefore, the Board finds that referral for extraschedular consideration is not warranted under 38 C.F.R. § 4.16(b). Accordingly, as the evidence of record clearly shows that the Veteran has not been precluded from substantially gainful employment and has been working during the entire period on appeal, referral for extraschedular consideration is not warranted and entitlement to a TDIU is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, Associate 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.