Citation Nr: 20042643 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 09-17 532 DATE: June 24, 2020 ORDER Entitlement to a rating in excess of 30 percent for left ankle fracture residuals is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 14, 2015, based on an extraschedular consideration is remanded. FINDING OF FACT At no point during the appellate period is the Veteran’s left ankle disability manifested by ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5270. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1965 to September 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board and remanded in May 2013 and December 2018 for further development. The Veteran underwent a VA examination regarding his ankle disability. Accordingly, since the RO has completed the requested development, the Board’s remand instructions have been substantially complied with by VA. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2020, the Veteran’s representative argued that the effective dates assigned to the Veteran’s service-connected type II diabetes mellitus and diabetic complications are incorrect and that service connection for coronary artery disease and other diabetic complications, such as peripheral neuropathy, should be granted. It was further argued that a Nehmer review for diabetes and coronary artery disease was warranted before TDIU could be addressed. The Board notes, however, that the decision to award service connection and the effective dates assigned to service-connected disabilities are appealable issues that are separate from a TDIU analysis. Moreover, a claim for TDIU does not trigger a review of the effective dates already assigned to service-connected disabilities, or whether service connection is warranted for other disabilities. Further, Nehmer review applies to prior denials of presumptive diseases associated with herbicide exposure between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. The record does not show that the Veteran was previously denied benefits for a presumptive disability under 38 C.F.R. § 3.309 due to lack of service in Vietnam. Entitlement a rating in excess of 30 percent for an ankle disability is denied Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the action. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. Additionally, when evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); see also 38 C.F.R. § 4.59. The Veteran maintains that his ankle disability is more severe than his disability rating indicates. The Veteran’s left ankle disability is rated under a hyphenated diagnostic code (DC) at 38 C.F.R. § 4.71a, DC 5010-5270. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, DC 5010 [traumatic arthritis] requires utilization of 5003 [degenerative arthritis] with further consideration of Diagnostic Code 5271 [limitation of motion of the ankle]. Diagnostic Code 5271 provides a 10 percent rating for moderate limitation of motion and a 20 percent rating for marked limitation of motion. A 20 percent rating is the maximum schedular rating under this code. 38 C.F.R. § 4.71a, DC 5271. The RO also evaluated the Veteran’s ankle under 38 C.F.R. § 4.71a, DC 5270, which provides a 20 percent disability rating for ankylosis of the ankle in plantar flexion less than 30 degrees; a 30 percent disability rating for ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees; a maximum 40 percent disability rating for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, DC 5270. Upon review of the claims file, there is no evidence of ankylosis including of the subastragalar or tarsal joint, and there is no evidence of malunion of os calcis or astragalus, or astragalectomy. Accordingly, analysis under DCs 5272, 5273, or 5273 is not warranted. In September 2007, the Veteran’s friend submitted a statement noting that over the course of his friendship with the Veteran, he has noticed his ankle condition worsen, that it was difficult to attend social functions due to his ankle disability. It was noted that the Veteran walked with a limp and that his ankle was swollen. The Veteran submitted September 2007 and 2008 reports from his private physician, Dr. B.R. In 2007, the physician indicated that the Veteran had ankle pain associated with decreased range of motion but did not note the measurements. In 2008, the physician indicated that the Veteran’s muscle strength was 4/5 for dorsiflexion and plantar flexion of the left ankle; with a range of motion of 0 to 5 and 0 to 40 respectively. His weight bearing position was neutral and weigh bearing arch was within normal limits. The Veteran has undergone three VA examinations throughout the appeal period. During a September 2007 examination, the Veteran reported eight out of ten on the pain scale. It was noted that there was weakness in the ankle, swelling, instability, fatigability and a lack of endurance. The Veteran denied having stiffness, heat or redness, locking, and flare-ups. The examiner reported a left side limp, but no functional limitations on standing or objective evidence of painful motion, edema, effusion, instability, weakness. The examiner found no ankylosis. Dorsiflexion was 0 to 5 degrees, and plantar flexion was 0 to 40 degrees. An x-ray report confirmed degenerative joint disease, probable ununited avulsion fracture of the medial malleolus. Repetitive use testing was not conducted at this examination. During a June 2013 VA examination, the Veteran reported pain between seven and eight out of 10; he purchased a shower chair because he couldn’t stand long enough to take a shower. He did not report experiencing flare-ups. His dorsiflexion was 10 degrees and plantar flexion was 30 degrees. The examiner found no ankylosis and no muscle atrophy. Diagnostic testing confirmed mild degenerative changes at the talus. Repetitive use testing did not result in any additional functional impairment. Outpatient VA treatment records document the Veteran’s complaints of ankle pain and swelling with the use of a brace. See, e.g., an October 2014 VA treatment record. The records do not document ankylosis with the degree specified for a 40 percent disability rating. During the November 2019 VA examination, the Veteran reported flare-ups with prolonged standing, walking, weather changes and weight bearing. He reported that he was unable to sit or stand for long periods of time. His dorsiflexion was between 0 and 2 degrees, and his plantar flexion was between 0 and 5 degrees. The examiner reported reduced muscle strength, but no muscle atrophy, and no ankylosis. The VA examiner reviewed a November 2019 imaging studies which revealed mild tibiotalar degenerative joint disease, a remote avulsion injury, and the ankle mortise intact. The Board acknowledges that the November 2019 VA examiner indicated that he could not determine if pain, weakness, fatiguability or incoordination limited functional ability with repeated use over time or during a flare-up without resorting to speculation. The examiner stated that after conducting an examination, listening to his history of current complaints, combined with a review of the records, he had no basis to offer additional loss of function during repetitive use or flare-ups. A speculative opinion is adequate if the examiner provides an explanation for that determination and indicates whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). In the present case, the examiner stated the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups and there was no other basis that would suggest additional functional loss. Based on the foregoing, the Board finds that entitlement to a disability rating higher than 30 percent for a left ankle disability is not warranted, as no ankylosis of the left ankle resulting in flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity is present. Therefore, the claim for an increased rating in excess of 30 percent for the left ankle is not warranted. In sum, the Board finds that the preponderance of the evidence is against a rating higher than 30 percent for a left ankle disability. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a total disability rating based on TDIU prior to September 14, 2015, based on an extraschedular consideration is remanded. The Veteran contends that he is entitled to a TDIU due to his service-connected disabilities prior to September 14, 2015. He maintains that it is difficult to maintain employment due to difficulty walking, standing and sitting for long periods of time. In May 2009, the issue of TDIU was raised as part of an increased disability rating claim. The Veteran submitted evidence that showed he was unable to perform his work duties because of the severity of his service-connected ankle disability. During the pendency of the appeal, the Veteran was awarded TDIU effective from September 14, 2015, the date he met the schedular criteria under 38 C.F.R. § 4.16(a). However, the record contains evidence that the Veteran may have been unemployable due to his service-connected disabilities prior to September 14, 2015, and the claim for TDIU prior to September 14, 2015 should be referred to the Director of Compensation and Pension in accordance with 38 C.F.R. § 4.16(b) to determine whether TDIU based on extraschedular prior to September 14, 2015 consideration is appropriate. The Board itself may not assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that “the [Board] is not authorized to assign an extraschedular rating in the first instance under 38 C.F.R. § 3.321 (b)” or § 4.16(b)); accord Smallwood v. Brown, 10 Vet. App. 93, 98 (1997); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). Accordingly, referral to the Director for consideration of TDIU on an extraschedular basis prior to September 14, 2015, is therefore appropriate in this case. (Continued on next page)  The matters are REMANDED for the following action: 1. Refer the Veteran’s claim for TDIU to the Director of Compensation and Pension Service pursuant to the provisions of 38 C.F.R. § 4.16(b) for consideration of whether TDIU is warranted on an extraschedular basis, prior to September 14, 2015. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. V. Palatt, 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.