Citation Nr: 21004310 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 13-09 396 DATE: January 26, 2021 ORDER Entitlement to a 20 percent rating, but no higher, for a right ankle disability is granted. Entitlement to a total rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence shows that the right ankle disability is manifested by marked limitation of motion when considering the Veteran’s complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups but not ankylosis at all times during the pendency of the appeal. 2. The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for 20 percent rating for a right ankle disability, but no higher, have been met at all times during the pendency of the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5270 to 5274. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from June 1967 to May 1971and his service included service in the Republic of Vietnam from November 1967 to July 1968 as a Rifleman with the award of the Combat Action Ribbon and Purple Heart with Gold Cluster. In January 2016, the Veteran testified at a hearing before the undersigned and a transcript of that hearing has been associated with the record. In a July 2016 decision, the Board of Veterans’ Appeal (Board) denied service connection for a headache, granted a 10 percent rating for the right ankle disability, denied a compensable rating for a traumatic brain injuries (TBI), and remanded the claim for a TDIU. The Veteran appealed the denials of a rating in excess of 10 percent for a right ankle disability, a compensable rating for residuals of TBI, and service connection for headaches to the United States Court of Appeals for Veterans Claims (Court). In an April 2017 order, that incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board’s January 2015 decision to the extent that they denied the above claims based on court decisions that did not exist at the time the examinations were undertaken. It is worthy to note that this action delayed the adjudication of the TDIU, the key issue in this case. In September 2017, the Board remanded the claims for a rating in excess of 10 percent for a right ankle disability, a compensable rating for residuals of TBI, and service connection for headaches. In November 2018, the Board granted service connection for headaches, denied a compensable rating for residuals of TBI as well as Remanded the claim for a rating in excess of 10 percent for the right ankle disability and the claim for a TDIU. Post-Remand Development and Correia and Sharp Concerns Initially, the Board finds that the post-remand development substantially complied with the Remand and the JMPR because after a review of the record and an examination of the Veteran the November 2020 VA examiner provide all needed information to rate his disabilities under all applicable rating criteria including range of motion studies that considered, among other things, his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order); Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Merits of the Rating Claim The Veteran contends that his right ankle disability is more severely disabling than represented by the rating assigned at all times during the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, 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. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). 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 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the Court in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran’s ankle disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under 38 C.F.R. § 4.71a, Diagnostic Code 5271, limitation of motion of the ankle is rated as 10 percent disabling if moderate and 20 percent disabling if marked. The words “slight,” “moderate” 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 to ensure that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Board also notes that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of the Board’s determination of an issue. The Board evaluates all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In this regard, normal range of motion of the ankle is 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71a, Plate II. As to rating in excess of 10 percent for the Veteran’s right ankle under Diagnostic Code 5271, the Board notes that the range of motion of the right ankle was as follows: December 2012 VA examination-dorsiflexion was to 5 degrees and plantar flexion to 35 degrees; July 2018 VA examination- dorsiflexion to 20 degrees and plantar flexion to 40 degrees, and November 2020 VA examination-dorsiflexion to 10 degrees and plantar flexion to 35 degrees. The Board also notes that while treatment records document the Veteran’s complaints and treatment for his right ankle disability these records do not contain range of motion studies showing that the motion of this ankle is less than what was reported by the above VA examiners. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Initially, the Board notes that the Court has held that, “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Given the above, the Board finds that when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court’s holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant’s competent reports of his observable adverse symptomatology (see Davidson, supra), and with granting the Veteran the benefit of any doubt in this matter, his functional losses equate to the criteria required for a 20 percent rating (i.e., marked limitation of motion) at all times during the appeal because, at its’ worst, dorsiflexion was 5 degrees at the December 2012 VA examination (i.e., 75 percent less than the normal 20 degrees) and plantar flexion was 35 degrees at the December 2012 and November 2020 VA examinations (i.e. 22 percent less than the normal 45 degrees). See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Colvin, supra, Davidson, supra. As to a rating in excess of 20 percent for the right ankle disability under another Diagnostic Code used to rate ankle disabilities, the Board notes that the above 20 percent meets or exceeds the maximum rating under all the other criteria for rating ankle disorders except for ankylosis under Diagnostic Code 5270. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 to 5274. Therefore, an increased rating is not warranted under these other Diagnostic Codes throughout the period of time during which his claim has been pending. See 38 C.F.R. § 4.71a; Hart, supra; Fenderson, supra. In this regard, Diagnostic Code 5270 provides that ankylosis of either ankle warrants a 20 percent evaluation if the ankle is fixed in plantar flexion at an angle of less than 30 degrees. A 30 percent evaluation requires that the ankle be fixed in plantar flexion at an angle between 30 degrees and 40 degrees, or in dorsiflexion at an angle between zero degrees and 10 degrees. Ankylosis at greater angles, or an abduction, adduction, inversion, or eversion deformity warrants a 40 percent rating. However, while the range of motion of the right ankle is restricted at the December 2012, July 2018, and November 2020 VA examinations the record on appeal never shows it being ankylosed. In fact, the December 2012, July 2018, and November 2020 VA examiners specifically opined that it was not ankylosed, and these medical opinions are not contradicted by any other medical opinion of record. See Colvin, supra. In the absence of ankylosis, the Board may not rate his service-connected right ankle disability as ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997). Consequently, a rating in excess of 20 percent for the right ankle disability is not warranted for the Veteran’s right ankle disability under Diagnostic Code 5270 throughout the period of time during which his claim has been pending. See 38 C.F.R. § 4.71a; Hart, supra; Fenderson, supra. Consequently, the Board finds that a rating in excess of 20 percent for the right ankle disability is not warranted at all times during the pendency of the appeal. See 38 C.F.R. § 4.71a; Hart, supra; Fenderson, supra. In reaching the above conclusions, the Board has not overlooked the claims from the Veteran regarding his adverse symptomatology. See Davidson, supra. However, the Board finds the VA examiners opinions as to the Veteran’s adverse symptomatology more probative than any lay claims from the appellant to the contrary even though his symptomatology is observable by a lay person because the examiners have medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim to the extent outline above, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. The TDIU Claim The Veteran claims that his service-connected disabilities have prevent him from working. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The record shows that the Veteran is service-connected for the following disabilities: • posttraumatic stress disorder (PTSD) rated as 50 percent disabling; • diabetes mellitus, type 2, rated as 20 percent disabling; • a right ankle disability rated as 20 percent disabling; • tinnitus rated as 10 percent disabling; • right elbow disability rated as noncompensable disabling; • an eye and jaw shell fragment wound scar rated as noncompensable disabling; • bilateral hearing loss rated as noncompensable disabling; • a traumatic brain injury (TBI) rated as noncompensable disabling; and • headaches rated as noncompensable disabling. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) because he has one disability rated as 40 percent or higher at all times during the appeal and he has a combined rating of 70 percent or higher. Thus, the question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, the Veteran’s August 2016 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), reports, in substance, that he had not worked full-time and became too disabled to work in June 2016 because of his service-connected disabilities. As to his work history the Veteran reported that from January 2010 to June 2016 he worked as a truck driver. As to his education, the Veteran reported that he had 4-years of college. Significantly, as to the Veteran’s being able to work performing jobs that require for the first time sedentary employment and non-sedentary employment, including his past employment as a truck driver, as well as other possible employment that could make use of his work experience and his 4 years of college, the Board finds that the medical records show that the problems caused by his service-connected PTSD, diabetes mellitus, right ankle disability, tinnitus, right elbow disability, bilateral hearing loss, TBI, and headaches adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, stand for any significant period of time, and interact effectively with co-workers and/or customers. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the 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 regional office). The Board also finds that his service-connected PTSD, diabetes mellitus, right ankle disability, tinnitus, right elbow disability, bilateral hearing loss, TBI, and headaches make it dangerous for the Veteran to work in most non-sedentary employments including his past occupation as a truck driver. Id. Similarly, the Board finds that that his service-connected PTSD, tinnitus, bilateral hearing loss, TBI, and headaches would make it very difficulty to learn the new skills needed to work in most sedentary employments for the first time and thereafter interact with his co-workers as well as any customers. Id. Given the above, the Board finds that the Veteran’s service-connected disabilities prevent him from securing or following a “substantially gainful” occupation given his prior vocational history, work experience, his education, and the impact his service-connected PTSD, diabetes mellitus, right ankle disability, tinnitus, right elbow disability, bilateral hearing loss, TBI, and headaches have on obtaining and maintaining substantially gainful non-sedentary employment for the first time and sedentary employment, including in his past employment as a truck driver, because of the problems they would cause in any work environment. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, his education, and the impact his service-connected disabilities and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.