Citation Nr: 21001919 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 08-10 714 DATE: January 12, 2021 ORDER For the entire period on appeal, entitlement to a disability rating of 30 percent, but no higher, for status post lateral reconstruction of the left ankle (hereinafter “left ankle disability”) is granted. Beginning February 27, 2020, entitlement to special monthly compensation (SMC) at the housebound rate is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, the Veteran’s left ankle disability has, at worst, manifested with the functional equivalent of ankylosis in dorsiflexion between 0 and 10 degrees throughout the entire period on appeal, but not by ankylosis in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. 2. From November 10, 2005 to January 31, 2006, from August 21, 2014 to November 30, 2014, and from September 7, 2017 to November 30, 2017, the Veteran was in receipt of a temporary total rating for post-surgical convalescence due to her service-connected left ankle disability. 3. From August 21, 2014 to November 30, 2014 and from September 7, 2017 to November 30, 2017, the Veteran was in receipt of SMC at the housebound rate based on a service-connected disability rated as total (temporary total rating for post-surgical convalescence due to her service-connected left ankle disability) and other service-connected disabilities rated as at least 60 percent disabling. 4. From September 30, 2019 to February 26, 2020, the Veteran was in receipt of SMC at the housebound rate based on a service-connected disability rated as total (PTSD) and additional service-connected disabilities rated as at least 60 percent disabling. 5. Beginning February 27, 2020, the Veteran has a service- connected disability rated as total (PTSD) and additional service-connected disabilities rated as at least 60 percent disabling. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a disability rating of 30 percent, but no higher, for a left ankle disability are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5270. 2. Beginning February 27, 2020, the criteria for SMC at the housebound rate are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from February 1995 to March 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to SMC at the housebound rate for the appellate period beginning February 27, 2020 has been raised by the record and added to the instant appeal. Akles v. Derwinski, 1 Vet. App. 118 (1991). The Board observes that the Veteran has other appeals pending before it under both the legacy and modernized appeals systems. The other legacy appeals (involving issues of service connection for asthma, chronic fatigue syndrome, sciatica, and cervical spine disabilities, entitlement to increased ratings for left knee and lumbar spine disabilities, and entitlement an extension of a temporary total rating based on post-surgical convalescence) are pending for the scheduling of a hearing and will therefore be addressed in another decision at a later date. The other modernized system appeals (involving issues of service connection for migraine headaches and sleep apnea and entitlement to an initial compensable rating for peripheral neuropathy of the left ankle) will also be addressed in separate decisions at a later date. Additionally, the Board notes that additional VA medical records were added to the claims file after the RO’s adjudication in the November 2020, without a waiver of initial RO consideration. See VA treatment records received December 2020. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). However, the Board finds that these records do not contain any evidence relevant to the severity of the Veteran’s left ankle disability, and accordingly, a waiver of initial RO consideration is not required. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Procedural History As detailed below, this matter has a complex procedural history. The issue of entitlement to an increased rating for the Veteran’s left ankle disability was before the Board in April 2012, November 2013, June 2014, and February 2016, at which time the Board remanded the claim for further development. The claim was returned to the Board in August 2017, at which time the Board awarded a 20 percent rating for the left ankle disability beginning August 8, 2014, but denied entitlement to a rating in excess of 10 percent for the appeal period prior to August 8, 2014 and in excess of 20 percent for the period beginning August 8, 2014. The Board also denied entitlement to a separate compensable rating for a neurological disability of the left ankle, to include left sural neuropathy. The Veteran timely appealed to the United States Court of Appeals for Veterans Claims (Court), and in June 2018, the Court granted the parties’ Joint Motion for Remand (JMR), vacating and remanding the portions of the Board’s August 2017 decision that denied entitlement to increased ratings for the left ankle disability and entitlement to a separate compensable rating for a neurological disability of the left ankle. In December 2018, the Board awarded a 20 percent rating for the Veteran’s left ankle disability, beginning August 24, 2005, which is the date VA received the claim for an increased rating. The issues of entitlement to a rating in excess of 20 percent and to a separate compensable rating for a neurological disability of the left ankle were remanded. In March 2020, the RO granted service connection for peripheral neuropathy of the left ankle and assigned a 0 percent rating, effective August 24, 2005, the date of receipt of the Veteran’s claim for increase. In June 2020, the Board awarded a TDIU beginning September 3, 2019 and SMC at the housebound rate between September 3, 2019 and February 26, 2020. The Board also remanded entitlement to a rating in excess of 20 percent for a left ankle disability for additional development. 1. Entitlement to a rating in excess of 20 percent for a left ankle disability Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. Ankle disabilities can be rated under DCs 5270, 5271, 5272, 5273, and 5274. Under DC 5270, ankylosis of the ankle in plantar flexion at less than 30 degrees warrants a 20 percent rating. A 30 percent rating is warranted if the ankylosis is in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. A 40 percent rating is warranted if there is 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. Under DC 5271, moderate limitation of motion in the ankle warrants a 10 percent disability rating and marked limitation of motion in the ankle warrants a 20 percent disability rating. See 38 C.F.R. § 4.71a, DC 5271. The maximum schedular rating available for limitation of motion for the ankle is 20 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” or “marked.” Sellers v. Wilkie, 30 Vet. App. 157 (2018) (DC 8520 does not define ‘mild,’ ‘moderate,’ ‘moderately severe,’ or ‘severe,’ or generally associate those terms with specific symptoms”). Rather than applying a mechanical formula, the Board must instead evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. For purposes of VA compensation, normal dorsiflexion of the ankle is zero to 20 degrees and normal ankle plantar flexion is zero to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. Under DC 5272, a 10 percent rating is warranted for ankylosis of the subastragalar or tarsal joint in good weight-bearing position. A 20 percent rating is warranted for ankylosis of the subastragalar or tarsal joint in poor weight-bearing position. Under DC 5273, applicable to malunion of the os calcis or astragalus, a 10 percent rating is warranted for a moderate deformity, and a 20 percent rating is warranted for a marked deformity. Under DC 5274, a 20 percent rating is warranted for astragalectomy. In this matter, the Veteran is currently in receipt of a 20 percent disability rating for her left ankle disability for the entire period on appeal. She asserts that a higher rating is warranted. Upon thorough review of the evidence, both lay and medical, the Board finds that the manifestations of the Veteran’s left ankle disability more nearly approximated the criteria for a 30 percent disability rating under DC 5270 for the entire period on appeal. Specifically, with resolution of all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s left ankle disability has, at worst, manifested with the functional equivalent of ankylosis in dorsiflexion between 0 and 10 degrees. The Board gives significant weight to VA examiner’s findings of left ankle ankylosis in VA examination reports dated March 2018, February 2020, and November 2020, as well as range of motion measurements showing dorsiflexion limited to between 0 and 10 degrees with consideration of pain in VA examination reports dated October 2001, December 2010, August 2014, June 2016, September 2016, August 2018, February 2020, and November 2020. Furthermore, the Board affords great probative value to the Veteran’s lay reports of constant left ankle pain, weakness, stiffness, swelling, lack of endurance, instability, and interference with standing and walking throughout the entire period on appeal. See VA examination reports dated April 2006 to November 2020. Notably, during the April 2006 VA examination, the Veteran reported that she experienced left ankle stiffness most of the time, swelling up to three times its normal size, constant giving way, and incapacitating episodes as often as three times per month lasting for three days, and pain was noted to occur even at rest during the March 2018 and November 2020 VA examinations. The Veteran has also endorsed occasional use of a cane and regular use of a left ankle brace due to weakness, frequent sprains, and to diminish swelling. See VA examination reports dated December 2010 to November 2020. Although some VA examinations during the period on appeal have indicated that the Veteran has some degree of dorsiflexion in the left ankle, to include to greater than 10 degrees, in light of the above evidence of significant functional limitations resulting in greatly decreased or no range of motion, as well as clinical findings of ankylosis, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s left ankle disability has, at worst, manifested with the functional equivalent of ankylosis in dorsiflexion between 0 and 10 degrees throughout the entire period on appeal. However, the Board finds that a rating higher than 30 percent is not warranted under DC 5270, as there is no ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees. The evidence also does not show that the Veteran’s left ankle has any abduction, adduction, inversion, or eversion deformity. See VA examination reports dated April 2006 to November 2020. As noted previously, the Veteran’s claim for entitlement to a separate compensable rating for peripheral neuropathy of the left ankle is pending before the Board under the modernized appeals system. Therefore, the Board does not have jurisdiction to adjudicate that issue at this time under the legacy system. 2. SMC at the housebound rate SMC at the housebound rate is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s). This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises, or if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.350(i). As previously mentioned, the Veteran is in receipt of a temporary total rating for post-surgical convalescence for left ankle surgery from November 10, 2005 to January 31, 2006, from August 21, 2014 to November 30, 2014, and from September 7, 2017 to November 30, 2017. The Veteran is already in receipt of SMC at the housebound rate from August 21, 2014 to November 30, 2014 and from September 7, 2017 to November 30, 2017. Additionally, the Board notes that in its June 2020 decision, it awarded SMC at the housebound rate for the appellate period between September 3, 2019 and February 26, 2020 based on a TDIU predicated solely on the Veteran’s service-connected PTSD and remaining service-connected disabilities combining to at least 60 percent disabling. At that time, the Board determined that an award of SMC was only available until February 26, 2020, since on February 27, 2020, the Veteran’s combined disability rating for her service-connected disabilities other than PTSD no longer met the 60 percent threshold for SMC at the housebound rate. However, later awards of service connection and evaluations assigned by the RO brought the Veteran’s combined disability rating (notwithstanding her 70 percent disability rating for PTSD) to in excess of 60 percent on February 27, 2020. Relevant to the instant period on appeal (beginning February 27, 2020), and apart from her service-connected PTSD, the Veteran is also service-connected for a left ankle disability (rated as 30 percent disabling from August 24, 2005), right shoulder strain (rated as 20 percent disabling from February 27, 2020), left ankle scar (rated as 10 percent disabling from December 12, 2011), right foot injury (rated as 10 percent disabling from March 9, 2016), left foot injury (rated as 10 percent disabling from March 9, 2016), right knee strain (rated as 10 percent disabling from November 8, 2017), left knee strain (rated as 10 percent disabling from September 8, 2017), right hip strain (rated as 10 percent disabling from November 8, 2017), left hip strain (rated as 10 percent disabling from November 8, 2017), chronic lumbosacral strain (rated as 10 percent disabling from February 27, 2020), peripheral neuropathy of the left ankle (rated as 0 percent disabling from August 24, 2005), right hip limitation of extension (rated as 0 percent disabling from November 8, 2017), left hip limitation of extension (rated as 0 percent disabling from November 8, 2017), right hip limitation of flexion (rated as 0 percent disabling from November 8, 2017), and left hip limitation of flexion (rated as 0 percent disabling from November 8, 2017). These additional service-connected disabilities combine to a rating in excess of 60 percent and are separate and distinct from the Veteran’s PTSD, as they involve different anatomical segments or bodily systems. Accordingly, as the Veteran has a single service-connected disability rated as total (PTSD), and she has additional service-connected disabilities that are independently rated as at least 60 percent disabling, the criteria for SMC at the housebound rate have been met for the appellate period beginning February 27, 2020. Finally, neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.