Citation Nr: 20026046 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 16-47 876 DATE: April 15, 2020 ORDER Entitlement to a rating in excess of 20 percent for service-connected right ankle disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s right ankle disability is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle. 2. The Veteran’s service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for service-connected right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5271 (2019). 2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Army from September 1986 to January 1987. This case comes before the Board on appeal of a February 2014 and January 2017 rating decision. In September 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via live videoconference. A transcript of the proceeding has been associated with the record. This case was previously before the Board in November 2019, where the issues on appeal were remanded for further evidentiary development. Subsequently, in a January 2020 rating decision, the AOJ granted service connection for degenerative arthritis with spinal stenosis and disc bulge with a 40 percent evaluation effective January 4, 2011. Additionally, he was granted service connection for right lower extremity (RLE) radiculopathy of the sciatic nerve with 20 percent evaluation effective August 12, 2011, and a 40 percent evaluation from January 4, 2020. In the same decision, the Veteran was granted service connection for RLE radiculopathy of femoral nerve with a 30 percent evaluation effective January 4, 2020. As explained above, the Veteran’s claim for a lumbar spine disability was granted in the January 2020 rating decision. Therefore, as the service connection claim has been granted, it is resolved and no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning “downstream” issues such as the compensation level assigned for the disability and effective date). The Board adds that in his December 2019 substantive appeal, the Veteran requested a live videoconference hearing for his TDIU claim; however, as decided herein, the TDIU claim is granted. Therefore, the Board finds that there is no need for a hearing as the full benefits sought on appeal are being granted. Thus, the hearing request is denied as moot. Increased Rating Claim Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, separate ratings for distinct periods of time, based on the facts may be for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2019). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 20 percent for a service-connected right ankle disability Here, the Veteran contends that his right ankle disability warrants a rating in excess of 20 percent disabling. Based on the evidence, the Board disagrees. At the outset, the Veteran’s right ankle disability is rated at 20 percent disabling under DC 5271, which rates the ankle based on limitation of motion. Under DC 5271, a 10 percent rating is warranted for moderately limited motion of the ankle; and a 20 percent rating is warranted for markedly limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Separate compensable ratings may also be awarded if the ankle is ankylosed, has malunion of the os calcis or astragalus, or has had an astragalectomy. 38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274. A higher rating may also be awarded under DC 5284 (other foot injuries): (a) a 10 percent rating is warranted for moderate foot injuries; (b) a 20 percent rating is warranted for moderately severe foot injuries; (c) a 30 percent rating is warranted for severe foot injuries; and (d) a 40 percent rating is warranted for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284. If the evidence does not indicate any of the above findings, then the minimum compensable rating (10 percent) is still available if there is painful motion of the joint. 38 C.F.R. § 4.59. In this instance, in the February 2014 VA examination, the Veteran reported right ankle pain with flare-ups that made it difficult for him to dress, drive, and perform yard work. He reported difficulty walking and limited mobility generally. On examination, his right ankle manifested with plantar flexion to 25 degrees, and dorsiflexion to 0 degrees, with objective evidence of pain. After repetitive use testing, the Veteran’s right ankle did not show additional limitation of motion. There was evidence of functional loss due to less movement than normal, pain on movement, swelling, and disturbance of locomotion. The Veteran’s right ankle had localized tenderness or pain on palpation. There was full strength in the right ankle and there was no evidence of joint instability. Likewise, there was no evidence of ankylosis, shin splints, stress fractures, malunion of calcaneus or talus. The Veteran reported the use of a cane regularly. The examiner remarked that the Veteran had not worked in his prior job in steel fabrication since 2009 partly due to his right ankle problems. Subsequently, in the October 2016 VA examination, the Veteran reported increased pain, stiffness, and swelling in his right ankle. He described the pain as throbbing, aching, stabbing pain. The pain worsened with walking or sitting too long, bending the ankle or ankle movement. He reported very little relief with medications and added that he had gout in his ankles. Additionally, the Veteran reported flare-ups that he described as severe pain. Likewise, the Veteran reported that he could not walk or stand at all some days and he had trouble getting in and out of the shower, walking to the mailbox, or any activity that required use of his right ankle. On examination, the Veteran’s right ankle manifested with dorsiflexion to 0 degrees, plantar flexion to 25 degrees. At that time, the Veteran had edema of his leg from knees to feet, which caused ankle inflexibility and pain on movement. There was evidence of pain with weight bearing but no evidence of localized tenderness or pain on palpation. The Veteran performed repetitive use testing without additional loss of function or range of motion. There was evidence of functional loss due to less movement than normal, pain on movement, swelling, and disturbance of locomotion, and interference with sitting and standing. The Veteran had a reduction of muscle strength but there was no evidence of muscle atrophy. Likewise, there was no evidence of ankylosis. Additionally, joint instability was not suspected. The Veteran reported constant use of a cane for ambulation. On x-ray testing, there was evidence of right ankle osteoarthritis. There was evidence of pain on passive range of motion but no evidence of pain when ankle was used in non-weight bearing. Finally, the examiner remarked that the Veteran’s right ankle limited his ability to walk, stand, sit, climb and he was unable to run or jump. Lastly, in the January 2020 VA examination, the Veteran was diagnosed with right ankle instability in addition to his right ankle arthritis. The Veteran reported pain and swelling in his ankle daily. He explained that he could not sit, stand, walk or run. He noted that he was limited. On examination, the Veteran’s right ankle manifested with dorsiflexion to 10 degrees, plantar flexion to 15 degrees, with objective evidence of pain on motion. There was no evidence of localized tenderness or pain on palpation but there was evidence of pain with weight bearing and crepitus. The Veteran performed repetitive use testing without additional loss of function or range of motion. There was evidence of functional loss due to less movement than normal, pain on movement, swelling, and disturbance of locomotion, and interference with sitting and standing. The Veteran had a reduction of muscle strength but there was no evidence of muscle atrophy. Likewise, there was no evidence of ankylosis. However, there was evidence of instability as the anterior drawer test and talar tilt test were both positive. There was no evidence of shin splints, stress fractures, malunion of calcaneus or talus. The Veteran reported the regular of a cane for ambulation due to right ankle instability and lumbar spine disease. On x-ray testing, there was evidence of right ankle traumatic arthritis. There was evidence of pain on passive range of motion and evidence of pain when ankle was used in non-weight bearing. The examiner remarked that the Veteran’s right ankle decreased ROM interfered with functional limitation in his sitting, standing and walking for prolong periods. Based on the foregoing, the Veteran’s right ankle most closely approximated a 20 percent disability for marked limitation of motion. The Veteran’s right ankle flexion ranged from 0 to 10 degrees of dorsiflexion and 15 to 25 degrees of plantar flexion. The Veteran reported constant pain and swelling and there was objective evidence of pain with weight bearing, crepitus, and joint instability. However, a higher evaluation is not warranted as there was no evidence of ankylosis or a severe foot injury. Furthermore, the Veteran is already in receipt of the maximum schedular rating for limited motion of the ankle. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). TDIU Claim A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2019). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The United States Court of Appeals for Veterans Claims (CAVC) has indicated that the unemployability question, or the veteran’s ability or inability to engage in substantial gainful activity, must be looked at in a practical manner and that the crux of the matter rests upon whether a job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2019); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “Substantially gainful” employment is employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the occupation in the community where the veteran resides. See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16 (a); see also Moore, 1 Vet. App. at 358 (“The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment.”). In reaching a decision, it is necessary that the record reflect some factor, which takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2019); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) Here, the Veteran meets the schedular criteria for TDIU. He is currently service-connected for degenerative arthritis with spinal stenosis and annular disc bulge at 40 percent disabling; RLE radiculopathy of the sciatic nerve at 40 percent; RLE radiculopathy of the femoral nerve at 30 percent; and the right ankle disability at 20 percent disabling. For a combined total of 80 percent disabling. Therefore, the Board must determine whether the Veteran’s service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. In his October 2016 TDIU application, the Veteran provided that his right ankle and back caused his unemployability. He explained that his right foot and leg would swell, and he had difficulty standing and bending to pull orders in the warehouse. He had worked in a warehouse for seven years but was unable to continue due to his right ankle, back, and RLE radiculopathy. In the September 2019 hearing, the Veteran testified that after service he worked as a carpenter but had to changed positions as he was unable to keep up on the assembly line due to his back and ankle. To support the Veteran’s contentions, the January 2020 VA examination showed that his lumbar spine disease manifested with forward flexion to 15 degrees, extension to 20 degrees, and bilateral lateral flexion and rotation to 10 degrees, with objective evidence of pain. Likewise, the Veteran suffers from severe RLE numbness, pain, and paresthesias/dysesthesias. The examiner remarked that the Veteran’s lumbar spine condition interfered with his ability to sit, stand, or walk for prolonged periods. Moreover, as discussed above, the Veteran’s right ankle interfered with his ability to walk, stand, sit, climb, run or jump. (Continued on the next page)   As such, the medical evidence supports the Veteran’s contentions that he is unable to maintain or obtain substantially gainful employment. Furthermore, his highest level of education completed was high school, and he reported that he did not receive any other training or develop additional skills. Importantly, as discussed above, the CAVC indicated that the unemployability question must be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. Accordingly, based on the Veteran’s prior vocational experience and level of education, his service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umo, 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.