Citation Nr: 20042019 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 17-63 789 DATE: June 19, 2020 ORDER Entitlement to a rating in excess of 10 percent for residuals of a left ankle sprain (with exception of the temporary 100 percent evaluations) is denied. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) prior to July 6, 2015, is remanded. FINDING OF FACT The most probative evidence does not reach the level of equipoise as to whether the Veteran’s left ankle disorder manifested functional impairment to the extent that higher staged ratings (with the exception of the temporary 100 percent ratings for convalescence) may be assigned at any point during the rating period. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for residuals of a left ankle sprain (with exception of the temporary 100 percent evaluations) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1978 to December 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). In June 2019, the Board remanded the above matters for further development. The agency of original jurisdiction (AOJ) was asked to procure VA examinations for the claims of entitlement to an increased rating for a left ankle disorder and a compensable rating for bilateral hearing loss, and to readjudicate the intertwined claim of entitlement to a TDIU. In September 2019, the Veteran underwent VA examinations for his left ankle and bilateral hearing loss. After reviewing the examination reports, the Board finds that the conclusions are adequate as to the left ankle disorder and will issue a decision on that claim. Regrettably, the findings are not adequate as to the claim for a compensable rating for bilateral hearing loss and the matter will be further addressed in the remand section below. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the Board errs as a matter of law when it fails to ensure substantial compliance with its own remand directives). In a March 2020 rating decision, the AOJ granted entitlement to a TDIU from July 6, 2015. However, as the grant of TDIU only covers a portion of the rating period, the question of entitlement to a TDIU prior to July 6, 2015, remains at issue on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). The matter will be further addressed in the remand section below. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Legal Criteria – Rating Disabilities Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (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 (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 (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 some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Entitlement to a rating in excess of 10 percent for residuals of a left ankle sprain (with exception of the temporary 100 percent evaluation) The Board finds that the most probative evidence does not reach the level of equipoise in the claim of entitlement to a rating in excess of 10 percent for residuals of a left ankle sprain (with exception of the temporary 100 percent evaluations) at any point during the rating period on appeal. Initially, the Board notes that the Veteran received temporary 100 percent ratings for surgical convalescence during the rating period. See 38 C.F.R. § 4.30; see also Rating Decision – Codesheet, May 2020. Higher schedular ratings may not be assigned during periods where a Veteran receives a temporary total rating. Thus, the question for the Board is whether the Veteran’s left ankle disorder manifested functional impairment to the extent that a higher rating may be assigned during periods where a temporary total evaluation was not in place. The Veteran’s left ankle disorder is rated under 38 C.F.R. § 4.71a, DC 5271. Such code provides a 10 percent rating for moderate limitation of motion of the ankle or a 20 percent rating for marked limitation of motion of the ankle. Terms such as “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. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. 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. Turning to the evidence of record, the Veteran underwent a VA examination in June 2010. He reported left ankle pain beginning after an injury during military service and continuing since that time. He reported flare-ups occurring spontaneously, relieved by rest. Range of motion testing showed left ankle plantar flexion 0 to 45 degrees, with objective evidence of pain at 35 degrees, and dorsiflexion 0 to 20 degrees, with objective evidence of pain at 10 degrees. The Veteran performed repetitive use testing without additional function loss. The examiner found that joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The Board has reviewed the Veteran’s VA medical records, which show frequent treatment for the left ankle during the rating period. For example, in September 2010, a VA primary care consultation note shows that Veteran complained of left ankle pain and decreased range of motion beginning in military service and progressing in severity. He requested an ankle brace and a cane and was referred to the relevant departments be fitted for those assistive devices. The Board has reviewed medical records from the Social Security Administration (SSA). Such records show that he was found to be disabled since January 2010, due to a number of severe impairments, including arthritis of the left ankle. The Veteran underwent an additional VA examination in December 2012. Range of motion testing showed left ankle plantar flexion 0 to 35 degrees, with objective evidence of pain at 35 degrees, and dorsiflexion 0 to 15 degrees, with objective evidence of pain at 15 degrees. The Veteran was unable to perform repetitive use testing due to ankle pain. The left ankle disorder resulted in functional impairment including pain on movement and less movement than normal. There was pain on palpitation in both ankles and muscle strength testing showed active movement against some resistance. There was no ankylosis. The Veteran reported using a cane regularly and the examiner found that the left ankle disorder would limit the Veteran’s ability to work in positions requiring prolonged standing. In February 2015, the Veteran had physical therapy at a VA medical center. He reported painful active range of motion in all directions. The clinician remarked that the Veteran was able to tolerate all palpitation without tenderness, exhibited reduced strength in the left ankle, and wore a controlled ankle motion boot. Range of motion was plantar flexion to 40 degrees and dorsiflexion to 10 degrees. The Veteran reported that his pain was a 4-5 out of 10, but increased with active range of motion. The clinician found that the Veteran continued to present with pain, decreased range of motion, gait abnormality, weakness, decreased coordination and balance, and stated that he would benefit from continued physical therapy. The Veteran reported for a VA examination in November 2017. However, due to a recent surgery, he had a cast on the left ankle. As a result, the examiner was unable to evaluate the ankle joint or obtain any range of motion measurements. The Veteran attended a VA podiatry consultation in May 2018. He reported having chronic left ankle pain continuing after his surgeries and wearing braces for support and compression stockings to alleviate swelling. In September 2019, the Veteran underwent another VA examination. He reported having throbbing pain and swelling “on and off,” and said that he was scheduled to have surgery in a few days. He further reported having flare-ups of left ankle pain alleviated by medication and rest. Range of motion testing revealed plantar flexion 0 to 30 degrees and dorsiflexion 0 to 10 degrees. Pain causing functional loss was noted on examination. The Veteran performed repetitive use testing without additional function loss. The examiner noted that the Veteran was being examined immediately after repetitive use over time and that his left ankle did not manifest additional pain, weakness, fatigability, and incoordination during such periods. Regarding flare-ups, the examiner found that the Veteran would not experience significant functional loss due to pain, weakness, fatigability, and incoordination during such periods. Muscle strength testing was normal and there was no ankylosis. The examiner found no evidence of pain on passive range of motion or on non-weightbearing of the left ankle. The Veteran’s attorney submitted an appellate brief in March 2019. However, he made no argument as to why he believed a higher rating should be assigned for the Veteran’s left ankle disorder. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise as to the issue of a rating in excess of 10 percent for the left ankle strain. Therefore, the claim may not be granted. During the rating period, the Veteran’s left ankle disorder manifested functional impairment equivalent to moderate limitation of motion. Such a level of functional impairment is equivalent to a 10 percent rating. 38 C.F.R. § 4.71a, DC 5271. Specifically, the Veteran’s plantar flexion has consistently remained 30 degrees or greater during the rating period, as documented by the VA examiners in 2012 and 2019 and the VA physical therapist in February 2015. Also, his dorsiflexion has consistently been at least 10 degrees. Thus, the record does not reflect evidence of “marked” limitation of motion of the left ankle to the extent that a rating in excess of 10 percent is for application. See id. The Board has considered the Veteran’s reports of pain and discomfort during flare-ups. However, the most probative evidence does not suggest that his left ankle disorder manifested functional impairment to the extent that a higher rating would be warranted during such periods. Specifically, the 2019 VA examiner considered the Veteran’s reports of flare-ups, but found that they would not result in significant pain, weakness, fatigability, or incoordination to the extent that they would cause additional lost range of motion. See Mitchell, 25 Vet. App. at 43. The Board has considered whether a higher rating may be assigned under another diagnostic code applicable to the ankles. However, the most probative evidence does not reflect ankylosis or malunion of the os calcis and astragalus to the extent that a higher rating could be assigned under another diagnostic code. See 38 C.F.R. § 4.71a, DC 5270, 5272, 5273, 5274. The Board has also considered the Veteran’s lay reports of pain and functional impairment. However, disability ratings are determined by the application of the rating schedule, which does not support entitlement to a higher rating in this case. 38 C.F.R. § 4.2. The Board has also considered whether referral for an extraschedular evaluation is warranted under 38 C.F.R. § 3.321 (b). However, the Veteran’s symptomatic reports, including pain and limited motion, are directly contemplated by the rating schedule. 38 C.F.R. § 4.71a, DC 5271. Moreover, neither the Veteran nor his attorney have raised any argument that the rating schedule is inadequate to compensate the Veteran for his left ankle symptoms. To the extent that he had surgeries on his left ankle and required convalescence, he was granted temporary 100 percent evaluations in the manner contemplated by the rating schedule for just such occurrences. 38 C.F.R. § 4.30. Accordingly, referral for consideration of an extraschedular evaluation is not warranted under the facts of this claim. The Board is grateful to the Veteran for his honorable military service. However, under the record before the Board, the most probative evidence does not reach the level of equipoise in the claim of entitlement to a rating in excess of 10 percent for a left ankle disorder. See 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard in section 5107 (b) is not applicable based on pure speculation or remote possibility). REASONS FOR REMAND 1. Entitlement to a compensable rating for bilateral hearing loss is remanded. The above claim must be remanded for an adequate VA examination documenting the current severity of the Veteran’s bilateral hearing loss. See 38 U.S.C. § 5103A; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The September 2019 VA audiological examiner was unable to obtain valid audiometric and speech discrimination testing results. He explained that discrepancies between speech reception thresholds and pure tone thresholds indicated a response pattern consistent with a functional, non-organic hearing loss, although the Veteran was urged several times to respond at the softest audible levels. However, he also noted that the Veteran had undergone surgery the day before the present appointment and came into the examination room still experiencing the effects of anaesthesia. Considering the above, the Board is unable to conclude that VA has provided a Veteran with an adequate VA examination documenting the severity of his bilateral hearing loss. 38 U.S.C. § 5103A (d). Accordingly, he should be scheduled for another VA examination to obtain accurate audiological testing results necessary for an informed decision on the merits of his claim. 2. Entitlement to a TDIU prior to July 6, 2015, is remanded. As discussed previously, the issue of entitlement to a TDIU prior to July 6, 2015, remains within the Board’s jurisdiction. A TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. It is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16 (b). The Board may not grant an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). However, once the Director issues a decision, the Board must adjudicate the matter without deference to the earlier decision. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Prior to July 6, 2015, the Veteran’s service-connected disabilities consisted of major depressive disorder, rated as 30 percent from January 2, 2015; right ankle sprain, rated as 10 percent disabling from February 29, 2012; and residuals of a left ankle sprain, rated as 10 percent from February 25, 1997. He received non-compensable ratings each for right plantar fasciitis and a left ankle scar. The Veteran’s combined rating was 20 percent from February 29, 2012; 100 percent from August 20, 2014; 100 percent from January 2, 2015; and 50 percent from April 1, 2015. See Rating Decision – Codesheet, May 2020. Thus, the question for the Board is whether the most probative evidence tends to support that the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disabilities to the extent that a referral to the Director for consideration of an extraschedular TDIU is appropriate. The Board observes that a 100 percent schedular rating moots the question of entitlement to a TDIU while the former is in effect. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). Additionally, the Board is cognizant of the holding in Rice v. Shinseki, 22 Vet. App. 447, 449 (2009), which found that a TDIU is not a separate claim for benefits, but rather an attempt to obtain the highest possible rating for the disorder(s) at issue. The Veteran submitted correspondence interpreted as an informal claim for service connection for depression on January 2, 2015. See Rating Decision – Narrative, July 2019 (granting a 30 percent rating for depression effective January 2, 2015). Thus, at a minimum, there is a possibility of entitlement to an extraschedular TDIU from April 1, 2015, if otherwise supported by the record. See 38 C.F.R. § 3.400 (o). Turning to the evidence of record, the Board observes that the Veteran was found to be unable to work by the SSA from January 2010, partially as a result of depression and ethanol abuse. See SSA/SSI Letter, March 2019. While a finding of total disability by SSA is not binding on the Secretary of VA, it remains a factor for consideration as evidence. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). A private psychologist, Dr. H.H.-G., submitted a medical opinion in March 2019. She found that the Veteran “cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his major depressive disorder.” She reviewed the Veteran’s reports of functional impairment due to his depression and considered the medical evidence of record. After careful review, the Board finds that the most probative evidence suggests that the Veteran may have been unable to secure and follow a substantially gainful occupation due to his service-connected disabilities prior to July 6, 2015. See Bowling, 15 Vet. App. at 10 (holding that where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation, the Court will reverse a Board determination, as a matter of law, that a veteran’s case is ineligible for consideration under 38 C.F.R. § 4.16 (b) by referral to the Director). In reaching this conclusion, the Board has considered the Veteran’s limited occupational background and educational history, in addition to the significant level of functional impairment documented by the medical evidence of record and the Veteran’s lay statements. While the Board does not find herein that the Veteran was unemployable due to service-connected disabilities prior to July 6, 2015, the evidence at least indicates that a referral to the Director for a determination on entitlement to TDIU on an extraschedular basis is necessary before a decision may be made on the merits. 38 C.F.R. § 4.16 (b). The matters are REMANDED for the following actions: 1. Please secure for the record copies of complete updated clinical records of all VA and non-VA treatment the Veteran has received for the disorders on appeal. 2. Schedule the Veteran for a VA examination documenting the current nature and severity of his bilateral hearing loss. The examiner is asked to discuss and explain all symptoms relevant to rating the disorder under the applicable criteria. 3. Thereafter, refer the Veteran’s claim for TDIU prior to July 6, 2015, to the Director, Compensation Service, for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b). Document all development with respect to this directive in the claims file. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.