Citation Nr: 21001340 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 18-23 653 DATE: January 7, 2021 ORDER Entitlement to a rating of 30 percent, but no higher, prior to October 6, 2020, for residuals of left distal fibula fracture with traumatic arthritis is granted. Entitlement to a rating in excess of 30 percent since October 6, 2020, for residuals left distal fibula fracture with traumatic arthritis is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. From August 24, 2017 to October 5, 2020, the Veteran’s residuals of left distal fibula fracture with traumatic arthritis was manifested by healed fracture of the fibula with marked ankle disability; they were not manifested by nonunion of the tibia and fibula with loose motion requiring a brace. 2. Since October 6, 2020, the Veteran’s residuals left distal fibula fracture with traumatic arthritis have not been manifested by nonunion of the tibia and fibula with loose motion requiring a brace. CONCLUSIONS OF LAW 1. From August 24, 2017 to October 5, 2020, the criteria for a rating of 30 percent, but no higher, for residuals left distal fibula fracture with traumatic arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5262. 2. Since October 6, 2020, the criteria for a rating in excess of 30 percent for residuals left distal fibula fracture with traumatic arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served with the Air Force National Guard, with periods of active duty for training from April 1963 to August 1963, in July 1964, and June 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board denied a higher rating for the Veteran’s residuals of a fracture of the left distal fibula with traumatic arthritis. In a December 2019 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand, and vacated the Board’s decision, remanding the matter for action consistent with the terms of the joint motion. In May 2020, the Board remanded the matter for additional development. During development, a November 2020 rating decision increased the Veteran’s residuals of a fracture of the left distal fibula with traumatic arthritis from 20 percent to 30 percent, effective October 6, 2020. Thus, the appeal has resulted in staged ratings. It has since been returned to the Board for further consideration. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a rating in excess of 20 percent prior to October 6, 2020, for residuals of left distal fibula fracture with traumatic arthritis Entitlement to a rating in excess of 30 percent since October 6, 2020, for residuals left distal fibula fracture with traumatic arthritis Historically, the Veteran’s service treatment records indicate that the Veteran injured his left ankle sliding into third base while playing softball in June 1965. X-ray in June 1965 demonstrated fracture of the distal left fibula. Medical record dated in March 1966 indicated that x-rays of the ankle in December 1965 showed nonunion and unreduced left fibular fracture. Report of Medical Examination in March 1967 noted left lateral malleolus fracture in June 1965 has resulted in nonunion causing pain on walking with swelling and mild joint deformity. The Veteran underwent VA examination in December 1976 at which time x-rays showed healed fracture of the left distal fibula; he was diagnosed as having residuals of fracture lateral malleolus left ankle joint. The Veteran underwent VA examination in November 2002 at which time x-rays showed mild deformity associated with old, healed fracture of the lateral malleolus with no evidence of nonunion and minimal arthritic spur formation at the anterior aspect of the tibiotalar joint. The Veteran’s left ankle disability, characterized as residuals of fracture of distal fibula with arthritis, has been rated as 20 percent disabling prior to October 6, 2020, and 30 percent disabling since October 6, 2020, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5262. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown after a hyphen. 38 C.F.R. § 4.27. Pursuant to Diagnostic Code 5010, traumatic arthritis will be rated as degenerative arthritis. 38 C.F.R. § 4.71a. Degenerative arthritis is evaluated on the basis of limitation of motion. Diagnostic Code 5003. The normal ranges of motion of the ankle are 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Marked” means having a distinctive or emphasized character. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran filed his claim for increased rating in August 2017 at which time he reported that his left ankle limited his walking due to pain; and that when driving, his ankle became painful and he had to stop and move some limiting his working hours to approximately 25 hours per week. The Veteran underwent VA examination in October 2017 at which time he reported that he was still working for an out-of-state company which involved a lot of walking. The Veteran reported that because his ankle was more symptomatic, he was limiting work to 25 hours per week. The Veteran reported that it was difficult to walk after sitting very long, that his left ankle pain kept him from doing extended walking, that at times, his left ankle pain woke him from sleep at night and that the weight of the blanket on his left foot also woke him up. He reported that his ankle rolled easily. On physical examination, dorsiflexion was from zero to 5 degrees; plantar flexion was from zero to 20 degrees. The examiner noted that pain and lack of endurance significantly limited functional ability with repeated use over time and with flare ups but was unable to describe in terms of range of motion. Muscle strength testing was slightly diminished (4/5) and there was muscle atrophy at 35 centimeters of atrophied side as opposed to 36 centimeters of more normal side but did not provide location of measurement. There was no ankylosis. Left ankle instability or dislocation was suspected but there was no laxity on talar tilt test, and the examiner was unable to conduct anterior drawer test. The examiner diagnosed traumatic arthritis and nonunion fracture left distal fibula. On his VA Form 9, Appeal to the Board of Veterans’ Appeals, received in May 2018, the Veteran stated that he had trouble getting out of bed due to the severe pain in his left leg. Private treatment records dated from June 2017 to July 2020 show that he reported having had times where he could not stand up on his ankle until he used his cane to “work it out.” Manual muscle strength testing revealed normal (5/5) strength to all groups of the bilateral lower extremities; there was pain on palpation at the anterior, anteromedial, and anterolateral left ankle; but no crepitation or locking noted with passive range of motion. In August 2018, x-rays of the left ankle showed moderate infracalcaneal exostosis, joint space narrowing anteriorly, evidence of old distal fibula fracture, well-preserved alignment including ankle mortise. The podiatrist noted that the Veteran likely had an anterior impingement syndrome of the left ankle and additional options such as MRI, ankle scope, and ankle replacement were discussed. His ankle was injected with a mixture of lidocaine with epinephrine, bupivacaine, and betamethasone sodium phosphate/betamethasone acetate. He also received injections in July 2019, and in August 2019, it was noted that his nerve pain had resolved secondary to injection and that the Veteran had obtained multiple years of relief with the injection. The Veteran underwent VA examination in October 2020 at which time he reported flare-ups of moderate to severe left ankle pain occurring a couple times a week and lasting a couple of hours. Flare-ups were noted to be precipitated by walking and standing and alleviated by rest. The Veteran reported that he was unable to walk for prolonged periods of time, stand for prolonged periods of time (longer than 20 min), and lift or carry heavy objects over 35 pounds. On physical examination, dorsiflexion was from zero to 5 degrees; plantar flexion was from zero to 20 degrees. The examiner noted that pain and lack of endurance significantly limited functional ability with repeated use over time and with flare ups such that both dorsiflexion and plantar flexion were limited from zero to 5 degrees. Muscle strength testing was diminished (3/5) but there was no muscle atrophy. There was no ankylosis. Left ankle instability or dislocation was suspected but there was no laxity on anterior drawer test or talar tilt test. There was evidence of pain on passive range of motion as well as evidence of pain when the joint was used in non-weight bearing. The examiner diagnosed traumatic arthritis and status post fracture of the left distal fibula. The Board finds that the preponderance of the evidence supports a rating of 30 percent, but no higher, for residuals of left distal fibula fracture with traumatic arthritis during the entire appeal period. At its worst, the Veteran’s left ankle was manifested by pain and lack of endurance from old distal fibula fracture, well-preserved alignment severe enough for podiatrist to consider ankle replacement. At no time during the appeal period, however, did the Veteran’s symptoms more nearly approximate nonunion of the tibia or fibula with loose motion, requiring a brace. Although the October 2017 VA examiner diagnosed nonunion fracture left distal fibula, on x-ray in August 2018, there was no evidence of nonunion. In addition, although the October 2020 VA examiner suspected left ankle instability or dislocation, there was no laxity on either the anterior drawer test or talar tilt test. Further, although the podiatrist in August 2018 considered using a brace, it was not for ankle instability; it was for ankle pain. The Veteran confirmed at the VA examinations in October 2017 and October 2020 that he used a cane; there was no indication that the Veteran’s left ankle required a brace. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating; however, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The only diagnostic code which provides a higher rating for an ankle disability is 5270 which provides ratings for ankylosis which is clearly not the case. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and lack of endurance on repetitive use over time and during flare ups; however, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the Veteran’s statements would not result in symptoms more nearly approximating ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. As the preponderance of the evidence is against a rating in excess of 30 percent for the Veteran’s service-connected left ankle disability, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107(b) (2019); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a TDIU due to service-connected disabilities On the Veteran’s application for compensation received in August 2017, he noted that his left ankle pain limited his working house to about 25 hours per week. At the October 2020 VA examination, the examiner noted the Veteran’s inability to produce income because of the Veteran’s pain and discomfort inhibit performing work-related tasks. It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment by reason of service-connected disabilities shall be rated totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 4.16(b) (when TDIU is raised but a veteran does not meet the § 4.16(a) criteria for a schedular TDIU rating, then an extraschedular TDIU rating must be considered). In this case, the evidence suggests that the Veteran’s service-connected left ankle disability may have rendered him unemployable. Thus, the claim for a TDIU rating has been added to the appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to a TDIU must be addressed in the first instance by the agency of original jurisdiction. Toward that end, the Veteran must be furnished a formal application for TDIU as well as a notice letter informing him of the requirements for substantiating entitlement to a TDIU. The Board notes that the Veteran’s disability percentage does not meet the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). The record indicates that the combined evaluation for compensation is 40 percent. Although the Board does not have authority to grant an extraschedular TDIU rating in the first instance, the Board does have the authority to decide whether the claim should be referred for consideration of an extraschedular rating. 38 C.F.R. § 4.16(b). Accordingly, the Board will remand the matter for referral to the Director of Compensation Service. The matters are REMANDED for the following action: (Continued on the next page)   1. Send the Veteran and his representative a TDIU application form (VA Form 21-8940) as well as a VCAA notice letter informing him of what is required to establish entitlement to a TDIU. 2. After the Veteran has completed and returned the TDIU application, forward the Veteran’s claim to the Director of Compensation Service for consideration of the assignment of a TDIU on extraschedular basis under 38 C.F.R. § 4.16(b). M. Miller Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Olson, 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.