Citation Nr: 21004641 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-44 026 DATE: January 27, 2021 ORDER A rating in excess of 40 percent for residual fracture right ankle with right foot and knee conditions (right ankle disability) under DC 5262-5270, to include on an extraschedular basis, is denied. A total disability rating based on individual employability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran was in receipt of the maximum schedular rating for his right ankle disability; this disability was not productive of an exceptional or unusual disability picture, marked interference with employment, or frequent periods of hospitalization. 2. The Veteran has retained meaningful (rather than marginal) employment throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 40 percent for residual fracture right ankle with right foot and knee conditions, to include on an extraschedular basis, have not been met. 38 U.S.C. § 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.71a, DC 5262-5270. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1959 to November 1962, including foreign service. He testified during a June 2019 videoconference hearing. A transcript of this proceeding has been associated with the record. These matters were then remanded by the Board in October 2019 for additional development. Specifically, the Board directed that the Veteran be provided a formal application for a TDIU, that he be given the opportunity to submit additional private treatment records (or to allow VA to obtain them on his behalf), and to schedule the Veteran for a contemporaneous examination to determine the severity of his service-connected ankle disability. Since then, the Veteran was provided (and has submitted) his formal application for a TDIU; he was sent a letter seeking additional treatment records in November 2019, and he underwent a new VA examination in October 2020. As each of the Board’s directives has been completed, the Board finds substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating First, the Veteran is pursuing a rating greater than 40 percent for his right ankle disability. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Historically, the Veteran’s disability has been rated in accordance with DC 5270-5262. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. The second diagnostic code provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Thus, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy. Accordingly, the Veteran’s disability has previously been rated as impairment of the tibia and fibula. Upon contemplation of the record, it is found that DC 5270-5262 is not the most appropriate DC under which to evaluate this Veteran. Rather, his service-connected disability primarily impacts his right ankle functioning, with related right foot and knee impairment. As such, he is more properly rated under DC 5262-5270, and subsequent rating codesheets should be revised to reflect this change. Such a finding is not to the detriment of the Veteran, as the revision to his DC simply reflects the primary bodily function affected by his service-connected disability and does not limit the maximum rating available to him, as both DCs 5262 and 5270 provide for a maximum 40 percent rating. In this respect, the Veteran is currently in receipt of the maximum rating available under both DCs 5262 and 5270. Accordingly, this appeal may only be granted if a higher rating is warranted on an extraschedular basis. The record does not support such a finding in this instance. Rather, the medical evidence establishes that the full scope of the Veteran’s reported symptomatology—namely, chronic right ankle pain, swelling, weakened movement, and an impaired ambulatory capacity—is contemplated by the applicable rating criteria. See May 2014 VA examination; September 2020 Disability Benefits Questionnaire (DBQ); see generally VA and private treatment records. Moreover, the evidence does not show that the Veteran’s right ankle disability necessitated any hospitalizations during the period on appeal. Id. In contrast, the Veteran asserts that an extraschedular rating is warranted because his right ankle pain causes marked interference with his employability. See, e.g., June 2019 hearing transcript (testifying that his right ankle pain causes sleep impairment and functional limitations such that the Veteran “can’t work”). However, the probative evidence weighs against such a finding in this case, as the Veteran owned and operated his own business throughout the duration of this appeal, even with the presence of his symptoms. Per the Veteran’s own testimony, he maintained at least part-time employment during this time (working approximately four to eight hours per day, or 20 to 40 hours per week, in the prior year), and lost approximately three months of work due to his disability in the prior 12 months. See, e.g., December 2019 VA Form 21-4192. Critically, at no time has a medical provider opined that the Veteran’s right ankle disability causes marked interference with his employment. See, e.g., May 2014 VA examination and September 2020 DBQ (both noting that the Veteran’s right ankle disability limited his capacity for prolonged standing or walking, but not otherwise concluding that he experienced marked interference with his employment as a result thereof). Thus, the evidence establishes that the Veteran experiences certain functional impairment due to his right ankle disability, to include difficulty with prolonged standing or walking. However, the evidence also directly refutes a finding that the Veteran’s disability is productive of such an unusual or exceptional disability picture as to cause marked interference with his employability. Rather, he maintained meaningful employment throughout the duration of this appeal, requiring only moderate absences from work and related workplace accommodations. In sum, the evidence does not reflect that the Veteran’s service-connected right ankle disability is so exceptional in nature as to not be fully contemplated by the rating schedule. Rather, there are no unusual clinical pictures presented, nor is there any other factor which takes the disability outside the usual rating criteria. Thus, even with the favorable resolution of doubt, the Veteran has not carried the burden of demonstrating that his right ankle disability is of such a nature that referral for extraschedular evaluation is warranted. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111. In offering this finding, the Board does not disregard the Veteran’s argument that an extraschedular rating is warranted based on occupational impairment.  However, he lacks the expertise to offer competent medical findings, to include regarding the occupational impact of his service-connected disability.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the Veteran’s repeated contention that his right ankle disability has rendered him unable to work is directly contradicted by the remainder of the evidence, to include his own reporting as to his ongoing employment history. Thus, the most competent evidence of record supports the finding herein. However, the Board observes that the Veteran is not precluded from submitting a new increased rating claim should his circumstances change in this respect. For the preceding reasons, this appeal is denied. TDIU The Veteran is also pursuing a TDIU. Generally, VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Thus, the central inquiry in a TDIU claim is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Thus, current meaningful employment acts as a bar to this benefit. In reviewing this Veteran’s employment history, the Board acknowledges his June 2019 hearing testimony as to significant occupational impairment due to his service-connected disabilities. Specifically, he reported chronic pain and instability with such basic movements as standing and walking, even with the assistance of a cane. As a result, the Veteran was contemplating closing his business (a locksmith shop) at that time. However, the evidence does not establish that the Veteran has actually closed his shop—only that he desires to do so. In a December 2019 VA Form 21-8940, the Veteran noted employment with KSLC Inc. from 1976 to the present. A monthly income of approximately $2,683.46 was also reported at that time. An accompanying VA Form 21-4192 indicates that the Veteran was “still employed” as a locksmith, with average earnings of approximately $30,000 in the prior 12 months; his last gross payment was estimated to be $1,500. At that time, the Veteran reiterated that he was “looking at either selling or liquidating” his company, as he could no longer work. Most recently, the Veteran underwent a series of VA contract examinations in September 2020. Although significant occupational impairments were noted throughout, his examination reports do not establish that the Veteran was unemployed at that time. The record is otherwise silent for evidence that the Veteran is currently unemployed. Thus, the Board finds that the Veteran has retained employment throughout the pendency of this appeal. Moreover, the Veteran’s employment is not “marginal employment” within the meaning of VA regulations. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). For the Veteran’s own knowledge, “marginal employment” is classified as earned annual income that does not exceed the poverty threshold for one person. 38 C.F.R. § 4.16(a). In utilizing the Veteran’s own reporting as to average annual earnings of $30,000, with a most recent gross monthly payment of $1,500, he has not demonstrated marginal employment at any time during the period on appeal. 38 C.F.R. § 4.16(a); Poverty Thresholds, U.S. Census Bureau, http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited January 15, 2021). In sum, the Veteran has maintained meaningful (rather than marginal) employment throughout the pendency of this appeal. As such, he lacks the legal grounds to establish entitlement to a TDIU under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). Accordingly, entitlement to a TDIU is not warranted and the appeal must be denied. In offering such a finding, the Board notes that the Veteran is not precluded from submitting a new TDIU claim in the event that he finds himself unemployed or maintaining only marginal employment. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.