Citation Nr: 21004179 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-32 090 DATE: January 26, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for a service-connected left ankle disability (previously claimed as residuals of a fracture with degenerative changes of the left ankle) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) since July 21, 2017 is granted. FINDINGS OF FACT 1. Throughout the period on appeal the Veteran had dorsiflexion around zero degrees, consistent with a 30 percent rating. The Veteran did not have ankylosis of the ankle with plantar flexion at more than 40 percent or dorsiflexion at more than 10 percent or with abduction, adduction, inversion, or eversion deformity. 2. Since July 12, 2017, the Veteran’s service-connected disabilities prevented him from obtaining and maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an assignment of a rating in excess of 30 percent for a service-connected left ankle disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.71a. Diagnostic Code (DC) 5270. 2. The criteria for the assignment of TDIU due to service-connected disabilities have been met as of July 12, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from June 1967 to March 1969. The Veteran received the Purple Heart Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal, among other commendations. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which reduced the Veteran’s left ankle disability rating from 30 percent to 10 percent, effective March 1, 2015. In April 2019, the Board found that the left ankle disability rating reduction from 30 percent to 10 percent effective March 1, 2015 was improper. Therefore, the Board restored the rating of 30 percent for the left ankle disability. See BVA Decision dated April 2019. In April 2019, the Board also remanded the claim of entitlement to a disability rating in excess of 30 percent for service-connected left ankle disability, and the claim of entitlement to TDIU for further development, including another VA examination. Id. In September 2019, the Veteran was afforded another VA examination. Then after a supplemental statement of the case (SSOC), the claim was returned to the Board. The Board recognizes that the issue of entitlement to a TDIU was previously denied by the Agency of Original Jurisdiction (AOJ). However, the claim for a TDIU remains in appellate status, as it is part and parcel to the instant increased rating issue on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to a rating in excess of 30 percent for the left ankle is denied Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. In rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). VA’s determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, 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). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that their service-connected left ankle condition has gotten worse over time and that this worsening warrants a higher rating. DC 5270 for “Ankle, ankylosis of” provides a 20 percent rating for plantar flexion of less than 30 degrees; a 30 percent rating for plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees; a 40 percent rating for plantar flexion at more than 40 degrees, or dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. See 38 C.F.R. § 4.71a. 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. In this case, the Veteran had a rating of 30 percent under 5010-5270 since July 21, 2005. The Board finds that a higher rating than 30 percent is not supported by the evidence during the relevant period of the claim. The Veteran was evaluated under DC 5010-5270, for left ankle disability at 30 percent effective July 21, 2005. In February 2006, the RO stated that the Veteran had antalgic gait, zero to 45 degrees of plantar flexion, and zero degrees of dorsiflexion on the left ankle. The RO stated that they assigned a 30 percent disability evaluation because it more closely approximated the Veteran’s disability level, because the Veteran was unable to dorsiflex his ankle, although plantar flexion was normal. See SOC received February 2006. In November 2018, a private treatment provider completed a left ankle DBQ. The examiner stated that the Veteran had zero to two degrees of dorsiflexion and zero to 10 degrees of plantar flexion. The private provider’s stated that the Veteran had left side ankylosis with 10 degrees of plantar flexion and two degrees of dorsiflexion. The provider stated that the Veteran could not perform prolonged walking, standing, stairs, uneven surfaces, squatting or heavy lifting. See VA examination received November 2018. In September 2019, the Veteran had a VA examination. The examiner stated that the Veteran had zero degrees of dorsiflexion, and zero to 25 degrees of plantar flexion in the left ankle. The examiner found that the Veteran did not have ankylosis of the left ankle; however, the Veteran did use an ankle brace, and had difficulty walking over three to four blocks at a time. The Veteran was also noted with objective evidence of pain on passive range of motion. See C&P Exam received September 2019. Considering all the evidence, the Veteran has had ongoing limitations to dorsiflexion of his left ankle around zero degrees since at least July 2005. While the Veteran reported that his overall left ankle condition has gotten worse, the Veteran does not meet the standard for a 40 percent rating. A higher rating under DC 5270 for ankylosis of the ankle provides a 40 percent rating for plantar flexion at more than 40 degrees, or dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. See 38 C.F.R. § 4.71a. The Veteran’s examinations show he has continued to have dorsiflexion around zero degrees. The evidence does not show dorsiflexion at more than 10 degrees, and his plantar flexion has never been more than 40 degrees. See VA Examination received November 2018, C&P Exam received September 2019. The Board also considered whether any other Diagnostic Codes would be applicable, but no other applicable Diagnostic Codes would result in the Veteran receiving an increase in his left ankle rating. Therefore, considering the evidence of record, the Board finds that a higher rating is not supported. In conclusion, looking at the record as a whole, the Veteran’s service-connected left ankle disability was properly evaluated under DC 5010-5270 at 30 percent. As a preponderance of the probative, credible evidence of record weighs against a finding of a rating in excess of 30 percent for the Veteran’s left ankle disability, the benefit of the doubt doctrine does not apply, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to TDIU effective July 12, 2017 is granted After a thorough review of the evidence, the Board concludes the Veteran’s service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment since July 12, 2017. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has a combined disability rating of 90 percent since July 12, 2017. The Veteran also had a combination of disabilities in the lower extremities that could be considered one disability rated at 40 percent or more. See 38 C.F.R. § 4.16(a); Rating Decision-Codesheet received May 2019. Therefore, the Veteran meets the basic eligibility for TDIU since July 12, 2017. Next, the Board considered whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected impairments. The evidence supports that the Veteran has been unemployed since November 2010. See VA 21-8940 received January 2012. The Veteran reported that he used to work at the Nebraska Public Power District as an Engineer from July 1979 to November 2010. He reported that he left work due to prostate cancer, hearing loss, and left ankle disability. Id. Considering the evidence, the Board finds the Veteran’s claimed unemployment to be credible. See 38 C.F.R. § 3.303(b); see also Charles v. Principi, 16 Vet. App. 370 (2002); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). While the VA examiner in September 2019, said that the Veteran could sit at a desk and perform some sedentary work when assessing the Veteran’s left ankle impairment, the VA must consider all the Veteran’s service-connected impairments when assessing TDIU. The Board finds that the combination of impairments since July 2017 would support a finding of TDIU. The Veteran was reasonably limited to sedentary work due to just his ankle. For example, in September 2019, the VA examiner opined that the Veteran had difficulty walking over three to four blocks at a time due to his ankle disability. The examiner also stated that the Veteran could not run, climb, crawl, or jump and the Veteran would be limited to pushing, pulling, and carrying no more than ten pounds. See C&P Exam received September 2019. Similarly, in November 2018, a provider completed an Ankle DBQ that stated that the Veteran could not perform prolonged standing, walking, and stairs. The provider also stated that the Veteran’s ankle limited his ability to walk on uneven ground, squat, and lift. See VA Examination received November 2018. In addition, since July 2017, the Veteran had impairment to his upper extremities, and lower extremities due to diabetic neuropathy. For example, in August 2017, the Veteran had a Diabetic Sensory-Motor Peripheral Neuropathy VA examination. The examiner found that the Veteran had neuropathy in the upper extremities and lower extremities. The examiner also stated that the Veteran had balance issues due to lower extremity neuropathy. See C&P Examination received in August 2017. The Veteran also reported he had residuals of prostate cancer, which caused him to leave work. The Veteran reported that prostate cancer caused him to have urine leakage. The Veteran also described having to go to the bathroom often. See SSOC received April 2020. The Board finds that limitations to the Veteran’s upper extremities, and balance, as well as, the Veteran’s need to go to the bathroom often, combined with a sedentary exertional capacity would support a finding of TDIU since July 12, 2017. Prior to July 12, 2017, and within the relevant period of this claim, the Board finds that the Veteran did not meet the requirements of schedular TDIU. See 38 C.F.R. § 4.16(a). Considering the above and resolving all doubt in the favor of the Veteran, the Board finds that since July 12, 2017, the Veteran was effectively prevented from obtaining and retaining gainful employment due to his service-connected disabilities. The Veteran’s ability to perform at even a sedentary level would have been compromised by diabetic neuropathy in the upper extremities, balance issues, and the need for extra breaks to use the bathroom. Therefore, the Board finds that the Veteran is entitled to an award of TDIU since July 12, 2017. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.