Citation Nr: 21000603 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-34 072 DATE: January 5, 2021 ORDER Entitlement to a rating in excess of 20 percent for left ankle achilles tendonitis with degenerative changes is denied. Entitlement to a rating in excess of 20 percent for right ankle achilles tendonitis with degenerative changes is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s left ankle achilles tendonitis with degenerative changes is manifested by marked limitation of motion, but the limitation of motion does not amount to ankylosis of the ankle. 2. The Veteran’s right ankle achilles tendonitis with degenerative changes is manifested by marked limitation of motion, but the limitation of motion does not amount to ankylosis of the ankle. 3. It is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left ankle achilles tendonitis with degenerative changes have not been met. 38 C.F.R. §§ 1154(a), 1155, 5107(b); 38 C.F.R. § 3.102, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5003-5271. 2. The criteria for a rating in excess of 20 percent for right ankle achilles tendonitis with degenerative changes have not been met. 38 C.F.R. §§ 1154(a), 1155, 5107(b); 38 C.F.R. § 3.102, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5003-5271. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1968 to July 1971 with service in Vietnam from October 1969 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2016. This case was previously remanded by the Board in December 2018 and July 2020 decisions for further development. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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); 38 C.F.R. §§ 3.102, 4.3. Although the evaluation of a service-connected disability requires a review of a veteran’s medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court later clarified that 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that although a VA examination need not be conducted during a flare-up to be adequate for assessing the extent of additional functional loss during a flare-up, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Id. at 34-35. 1. Entitlement to a rating in excess of 20 percent for left ankle achilles tendonitis with degenerative changes 2. Entitlement to a rating in excess of 20 percent for right ankle achilles tendonitis with degenerative changes The Veteran’s left ankle and right ankle achilles tendonitis with degenerative changes are currently rated as 20 percent disabling under DC 5299-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and 99. See 38 C.F.R. § 4.27. DC 5271 assigns a 10 percent disability rating for moderately limited range of motion of the ankle and a 20 percent disability rating for markedly limited range of motion of the ankle. The words slight, moderate, marked, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 3 8 C.F.R. § 4.6. Use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Pursuant to VA regulations, normal range of motion for ankle dorsiflexion is 0 to 20 degrees and for plantar flexion is 0 to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. The Board must also consider whether the Veteran is entitled to separate or higher disability ratings under other DCs that relate to the ankle. See 38 C.F.R. § 4.71a, DCs 5270 through 5274. Under Diagnostic Code 5003, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. DC 5270 provides the following disability ratings for ankylosis of the ankle: 20 percent for in plantar flexion of less than 30 degrees; 30 percent for in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 (zero) and 10 degrees; and 40 percent for in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. See 38 C.F.R. § 4.71a. DC 5272 provides a 10 percent disability rating for subastragalar or tarsal joint ankylosis in good weight-bearing position and a 20 percent disability rating for ankylosis in poor weight-bearing position. See 38 C.F.R. § 4.71a. DC 5273 provides a 10 percent disability rating for moderate deformity resulting from the malunion of the os calcis or astragalus and a 20 percent disability rating for a marked deformity resulting from the malunion of the os calcis or astragalus. DC 5274 provides a 20 percent disability rating for astragalectomy. In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Code 5272, 5273, and 5274 are not applicable in this case, as the evidence does not show that the Veteran has any of those conditions. In the December 2018 Board decision, the Board noted that the Veteran reported at the October 2016 hearing and in his March 2017 TDIU application that his left knee tendonitis worsened. The Board also was unable to determine from the June 2015 VA examination whether the Veteran had ankylosis in his right ankle. The case was remanded for an additional VA examination. The Veteran was afforded a VA examination in May 2019 for his bilateral ankle disabilities, in which the Veteran reported functional pain, inability to dorsiflex his ankle, and instability that requires bilateral braces and a cane when he walks distances that are beyond the normal household distances. The VA examiner remarked that Veteran did not have complete bony ankylosis bilaterally, but he had decreased movement due to soft tissue adhesions and mononeuropathy. No ankylosis was diagnosed, while bilateral ankle instability or dislocation was suspected. The examiner opined that the Veteran’s functional limitation of the range in his bilateral ankles is not due to any fixed bony ankylosis. The Board found in its July 2020 decision that the May 2019 VA examination was inadequate in that it did not address Veteran’s reports of neurological impairments due to his service-connected ankle disabilities. Specifically, in a November 2016 attachment to Veteran’s VA Form 21-8940, he reported highly unstable ankles due to several problems with bones, tendons, ligaments, and peripheral neuropathy. In the March 2017 attachment to another submitted VA Form 21-8940, he reported severe problems with his ligaments and nerves in his feet and ankles, including peripheral neuropathy. He further reported that pain in his tendons and muscle spasms in the ankles leave him unable to walk for several months at a time, and peripheral neuropathy has substantially reduced feeling in his feet. In light of the contentions noted above, the Board remanded the claims for an additional VA examination to thoroughly ascertain the current nature and etiology of the Veteran’s service-connected bilateral ankle disabilities. The Board noted that despite the VA examiner ruling out ankylosis in either ankle in the May 2019 VA examination, it was also necessary to render a medical opinion on whether the Veteran’s nature and severity of his bilateral ankle disabilities is tantamount to ankylosis. See July 2020 BVA Decision. Post-remand, the Veteran was provided another VA examination for his bilateral ankle disabilities in September 2020. The Veteran reported his disabilities have worsened and current symptoms are constant and sharp pain with movement and standing, limited range of motion, stiffness, weakness, cracking/popping, swelling and instability. Veteran reported flare-ups of the ankles, stating “I have constant pain in both my ankles, and I can hardly put weight on them most of the time with terrible increased pain and instability. They always feel weak and I am… concerned with balance.” The examiner noted that the initial range of motion of the both the right ankle and left ankle was dorsiflexion from 0 to 5 degrees and plantar flexion from 0 to 10 degrees; for both ankles, range of motion itself did not contribute to a functional loss, but there was objective evidence of moderate localized tenderness or pain on palpation of the lateral malleolus. There was also evidence of pain with weightbearing on both ankles, and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing on both ankles without an additional loss of function or range of motion after three repetitions. While the examination was not conducted during a flare-ups, the examiner noted that pain, weakness, fatigue and lack of endurance significantly limited functional ability with flare-ups, and the examiner described range of motion during flare-ups for the right ankle as dorsiflexion from 0 to 3 degrees and plantar flexion from 0 to 8 degrees, while for the left ankle dorsiflexion was 0 to 2 degrees and plantar flexion was 0 to 8 degrees. See September 2020 VA Ankles Examination. The VA examiner noted additional contributing factors of disability to both ankles as less and weakened movement, instability, minimal flexion and extension and pain with standing and walking. Veteran was not noted to have muscle atrophy. Veteran was also not noted to have ankylosis in either ankle. Ankle instability or dislocation was suspected bilaterally. Veteran was noted to need regular use of a cane as an assistive device. The VA examiner updated the Veteran’s right ankle diagnosis to include degenerative arthritis and noted the left ankle arthritis is a direct progression of the service-connected tendonitis; the arthritic changes were more likely to occur with inflammation and injury to the affect area over time. In order to receive the next highest rating, the evidence must show that the Veteran’s left ankle and right ankle disabilities amounts to ankylosis. The Board finds that the preponderance of the evidence shows that the Veteran’s left ankle and right ankle disabilities have manifested by marked limitation of motion and instability. However, a rating in excess of 20 percent is not warranted as there is no evidence of ankylosis in either ankle. The Board notes that as 20 percent is the highest schedular rating for limitation of motion of the ankle, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). As to any neurological manifestations of the ankle disabilities, the examiner opined although the current ankle symptoms are related to the service-connected diagnosis during service, there was very minimal movement but no ankylosis in the ankles. The examiner explained that there was no anklyosis present because there was some movement in terms of flexion and extension. See September 2020 VA Ankles Examination. The Board interprets the examiner’s response to the question regarding neurological impairment as indicating that the Veteran had no separate neurologic impairment. See Atencio v. O’Rourke, 30 Vet. App. 74, 89 (2018); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (per curiam) (stating that medical opinions must be read as a whole); see also Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). As the medical and lay evidence of record does not show presence of ankylosis, the benefit-of-the-doubt doctrine is not applicable and ratings in excess of 20 percent for left ankle and right ankle achilles tendonitis with degenerative changes are not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran contends that he is unable to work due to his service-connected bilateral ankle, bilateral knee, right foot and right hip conditions. See November 2016 and March 2017 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The May 2019 and July 2020 VA ankle examinations shows the Veteran’s bilateral ankle disabilities impacts his ability to work due to decreased mobility, problems with walking, climbing, running, bending, squatting, pushing or other strenuous activities that increase pressure on the feet in certain work environments. When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Veteran’s service-connected disabilities consist of the following: right ankle achilles tendonitis at 20 percent disabling, left ankle achilles tendonitis at 20 percent disabling, right knee painful and limited motion at 10 percent disabling, tinnitus at 10 percent disabling, right knee instability at 10 percent disabling, right foot degenerative arthritis at 10 percent disabling, right foot Morton’s neuroma at 10 percent disabling, right hip osteoarthritis at 10 percent disabling, left knee instability at 10 percent disabling, left knee degenerative joint disease at 10 percent disabling, left knee scar at 0 percent disabling, left lower extremity neuropathy at 0 percent disabling, right lower extremity neuropathy at 0 percent disabling, and right hip limitation of flexion at 0 percent disabling. The Veteran’s combined evaluation for compensation is 80 percent. Thus, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16 (a). At his October 2016 Board hearing, the Veteran testified that he cannot walk far, cannot type, and his service-connected disabilities have rendered him unable to drive and he has not worked for a very long time due to his disabilities. In his filed VA Form 21-8940, Veteran indicates that he last worked full-time in December 2010, and that is when he became too disabled to work. He references his highly unstable knees, ankles, and peripheral neuropathy in his feet and ankles affecting his hands, ability to drive, and causing dizziness which along with his age are limiting factors in his unemployability. The Board acknowledges that the September 2020 VA examiner noted that the Veteran’s ankles did impact his ability to work but there would be no limitations for a sedentary job related to his condition. and previous VA examiners have opined that the Veteran’s ankle conditions adversely impacted his ability to work. The Veteran also submitted lay statements in which he described the deteriorating conditions of his ankles – he deals with bone arthritis, spurs on top of feet and bottom of the heels, loss of elasticity in his tendons, and numbness in his feet and ankles which have forced him to walk flatfooted affecting his knees. He states that he cannot walk up and down stairs unless he scoots down, he wobbles, deals with instability and his ankles require bracing. The Veteran contends that he cannot stand or walk very far for more than a few minutes without having to sit due to substantial instability and pain, and his account is supported by corroborating lay evidence. See October 2020 Buddy/Lay Statement. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports that the Veteran’s service-connected disabilities prevents him from securing or following substantially gainful employment. As the Veteran meets the requirements under 38 C.F.R. § 4.16 (a), is not currently working, and the evidence supports that the Veteran’s service-connected disabilities prevent him from securing or following substantially gainful employment, the Board finds that entitlement to a TDIU is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.