Citation Nr: 21062234 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 11-20 448 DATE: October 6, 2021 ORDER An increased rating in excess of 10 percent for the service-connected fractured right distal tibia-fibula (hereinafter referred to as a right ankle disability) from December 4, 2009 is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the rating period on appeal from December 4, 2009, the right ankle disability has not more closely approximated marked limitation of motion of the ankle. 2. The Veteran has not submitted VA Form 21-8940 (Application for TDIU) in a one-year period after requested to do so by VA in April 2020. 3. The information requested on the Application for TDIU is necessary to substantiate a claim for TDIU. CONCLUSIONS OF LAW 1. For the entire rating period on appeal from December 4, 2009, the criteria for a disability rating in excess of 10 percent for a right ankle disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271. 2. The issue of a TDIU is denied. 38 U.S.C. § 7104; 38 C.F.R. § 3.158. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to December 2002. This matter is on appeal from a March 2010 rating decision issued by the Regional Office (RO), when the RO denied an increased rating in excess of 10 percent for the service-connected fractured right distal tibia-fibula in response to a claim filed on December 4, 2009. In April 2010, the Veteran claimed a TDIU as part of this claim for increased rating. The Veteran testified in Palm Beach, Florida, at a Board videoconference hearing in October 2014. The hearing transcript has been associated with the record. In July 2015, the Board remanded both issues. The Board requested that a VA examination be conducted to assess the current severity of the right ankle. The Board also requested that the Veteran be provided with an application for increase compensation based on unemployability (VA Form 21-8940). A VA examination was not conducted, and the VA Form 21-8940 was not sent to the Veteran. In October 2017, VA notified the Veteran that the Judge that held the Board hearing in October 2014 is no longer employed by the Board and explained the Veteran's options moving forward in the appeal. The Veteran did not submit a timely response to VA's October 2017 notification. As a result, the Board assumed that the Veteran did not want another hearing and proceeded accordingly. In January 2018, the Board remanded both issues again. The Board requested that a VA examination be conducted to assess the current severity of the right ankle. The Board also requested a VA examination opinion to help determine the impact of the service-connected disabilities on the ability to maintain substantially gainful employment. VA examinations were conducted in November 2020. In April 2020, VA provided the Veteran with a VA Form 21-8940. The letter told the Veteran that, if he thought he qualified for a TDIU, he should complete, sign, and return the enclosed VA Form 21-840. In March 2021, the Board remanded both issues again. The Board found that the November 2020 VA examination was unclear and found that a remand for a VA examination addendum opinion was warranted. The Board also found that the November 2020 VA examination did not fulfill the TDIU opinion requested in the January 2018 Board remand. VA examinations were conducted in April and June of 2021. A June 2021 supplemental statement of the case denied both claims. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. See 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). For disabilities of the musculoskeletal system, the Board also considers whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. Additionally, painful motion is an important factor of disability, and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Throughout the course of the appeal, the Veteran has contended generally that the right ankle disability warrants a higher rating. At the February 2018 Board hearing, the Veteran reported foot pain and the use of braces, a walker, and scooter. See February 2018 Board hearing transcript. Under Diagnostic Code 5271, the diagnostic code for rating limitation of motion of the ankle, a 10 percent rating is warranted where there is moderate limitation of ankle motion. A 20 percent rating is warranted where there is marked limitation of ankle motion. 38 C.F.R. § 4.71a. Normal ranges of ankle motions are from 0 to 20 degrees for dorsiflexion and from 0 to 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II. 1. Rating the Right Ankle Disability from December 4, 2009 The Veteran was in receipt of a 10 percent disability rating for the right ankle disability under 38 C.F.R. § 4.71a, Diagnostic Code 5271, from January 1, 2003. In December 2009, the Veteran filed a claim for increased rating. After a review of the evidence, the Board finds that, for the rating period on appeal, from December 4, 2009, the right ankle disability has not more closely approximated marked limitation of motion of the ankle to warrant an increased rating. The Veteran submitted to a VA examination in April 2011. The VA examiner noted reduced range of motion, pain when walking, stiffness, weakness, incoordination, decreased speed of joint motion, swelling, and redness. The VA examiner noted that the right ankle did not manifest in deformity, giving way, or instability. The Veteran reported flareups every 1 or 2 months lasting 3 to 7 days. The Veteran was able to stand for 15 to 30 minutes and walk for a quarter mile but no more than a mile. The Veteran did not need to use assistive devices. The right ankle severely impacted the Veteran's ability to do chores, exercise, play sports, participate in recreation activities, travel, bath, dress himself, and drive. According to June 2011 VA treatment records, the VA examiner recorded limited range of motion when assessing dorsiflexion but did not record the specific degree of decrease. During the November 2014 Board hearing, the Veteran testified that he noticed a decrease in the right ankle range of motion. The Veteran explained that he has difficulty walking on uneven surfaces and on ramps. The Veteran also reported that the right ankle was swelling and locking. The Veteran submitted to another VA examination in November 2020. The Veteran reported difficulty walking long distances (more than 1 mile). The VA examiner found that the right ankle had normal range of motion, no pain, no objective evidence of localized tenderness or pain on palpation, no pain with weight bearing, and no crepitus. The VA examiner measured dorsiflexion at 0 to 20 degrees and plantar flexion at 0 to 45 degrees, both measurements indicating that the Veteran has full range of motion. The VA examiner noted pain and fatigue with repetitive use over time and that there was no functional loss during flareup. The VA examiner found that the Veteran had full muscle strength, no ankylosis, stable joints, and no shin splints. The right ankle swelled with increased activity, but the Veteran did not require assistive devices. In a March 2021, the Board remanded the issue because it was unclear "whether the significantly limited range of motion recorded as functional loss after repeated use was in error or whether the examiner found that the Veteran still retained full range of motion in his right ankle despite the limitation of functional ability with repeated use over a period of time." The Board also noted that the Veteran has described his right ankle's default position as "almost locked." The Board remanded because of the internal inconsistency regarding range of motion, in addition to the discrepancy between the Veteran's reports and the findings of the examiner. The Board requested a VA examination addendum opinion. Pursuant to the March 2021 Board remand, a VA examination addendum opinion was issued in June 2021 and substantiated the findings made in the November 2020 VA examination. The VA examiner explained that the Veteran could have no functional loss after observed repetitive use testing, while also exhibiting pain and swelling due to increased use after walking for a mile. The VA examiner noted that one mile is a moderate distance which would require repetitive use of the ankle over time, which is significantly greater than the 3 repetitions performed during the disability exam and could account for the discrepancy. The VA examiner also noted that the Veteran's right ankle arthritis, documented on x-ray, could be aggravated with prolonged use such as walking one mile. The VA examiner also assessed that if the right ankle's default position is "almost locked" then he would not have exhibited full range of motion for dorsiflexion and plantar flexion. The VA examiner explained that the normal range of motion findings on the disability exam refute the Veteran's statement that the ankle is locked. While various VA treatment records reflect the Veteran worsening of the right ankle, the schedular rating criteria specifically contemplate such symptomatology, findings, and functional limitations. 38 C.F.R. § 4.71a, Diagnostic Code 5271; DeLuca, 8 Vet. App. 202. The weight of the evidence is against finding marked limitation of motion in the right ankle (less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion). For these reasons, the appeal for a higher rating must be denied. 2. TDIU In April 2020, in accordance with the duties to notify and assist, VA sent the Veteran a VA Form 21-8940 in order to obtain information needed to adjudicate the TDIU claim. The letter told the Veteran that, if he thought he qualified for a TDIU, he should complete, sign, and return the enclosed VA Form 21-840. The letter also advised that for any self employment the Veteran should provide the type of work, number of hours per week worked, amount of time lost from work due to service-connected disabilities, and net and gross earnings from self employment. (Continued on the next page) To date the Veteran has not completed and returned the VA Form 21-8940 or provided the content of information requested therein. Where evidence requested in connection with a claim for increase (of which TDIU is one form) is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. 38 C.F.R. § 3.158(a). As the requested VA Form 21-8940 or information requested therein were not received within one year of written request for this information from the Veteran, the appeal for a TDIU must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.