Citation Nr: 21062239 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-33 443 DATE: October 6, 2021 ORDER Entitlement to a rating in excess of 20 percent for left ankle ankylosis with arthritis prior to June 2, 2017 (exclusive of the period from March 30, 2017 to June 1, 2017, during which time a temporary total rating was assigned under 38 C.F.R. § 4.30) is denied. Entitlement to an increased rating of 40 percent for left ankle ankylosis with arthritis, but no higher, from June 2, 2017, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to March 30, 2017, the most probative evidence demonstrates that the Veteran's left ankle disability manifested by no more than malunion with moderate ankle disability. 2. The Veteran is in receipt of a temporary 100 percent evaluation for convalescence due to his left ankle surgery from March 30, 2017 to June 1, 2017. 3. From June 2, 2017, the Veteran is in receipt of the maximum schedular rating for his left ankle disability, and such disability did not result in symptomatology not contemplated by the currently assigned rating. 4. The preponderance of the evidence supports that the Veteran's left ankle disability precludes him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Exclusive of the period where a temporary total rating has been assigned, the criteria for a rating in excess of 20 percent for left ankle disability have not been met prior to June 2, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code (DC) 5262, 5270, 5271. 2. From June 2, 2017, the criteria for entitlement to an increased rating of 40 percent for left ankle ankylosis with arthritis, but no higher, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71a, DC 5262, 5270. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1974 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a January 2017 rating decision issued by the Agency of Original Jurisdiction (AOJ). The Board previously remanded the appeal in February 2019 for additional development to include obtaining a VA examination assessing the current severity of the Veteran's left ankle disability and adjudicating the Veteran's TDIU claim. The Veteran was afforded a new VA examination for ankle disabilities in October 2019. In July 2020, the AOJ issued a supplemental statement of the case addressing the Veteran's TDIU claim. Therefore, the Board finds there has been substantial compliance with the February 2019 remand directives, and further remand of the increased rating claim is not required. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an increased rating for a left ankle disability Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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 deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Initially, the Board notes that Diagnostic Code 5271, governing limitation of motion of the ankle, provides for a maximum rating of 20 percent, which the Veteran has been in receipt of for the duration of the appeal period. Accordingly, a higher rating under this provision is not available, and the Board will not address it further in the analysis. Under Diagnostic Code 5270, governing ankylosis of the ankle, a 40 percent rating is assigned where there is ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. During the pendency of the appeal, the rating criteria for evaluating certain musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Diagnostic Code 5262 was amended by this provision. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claims under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied for the period after February 7, 2021. Prior to February 7, 2021, under Diagnostic Code 5262 a 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion with loose motion and requiring a brace. 38 C.F.R. § 4.71a. Diagnostic Code 5262, tibia and fibula impairment was revised effective February 7, 2021. Under the new rating criteria effective February 7, 2021, for medial tibial stress syndrome (MTSS), or shin splints, a 20 percent rating is warranted when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; a 30 percent rating is warranted when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Malunion of the tibia and fibula is to be evaluated under Diagnostic Codes 5270 or 5271 for the ankle, whichever results in the highest evaluation. Nonunion of the tibia and fibula, with loose motion, requiring brace, warrants a 40 percent rating. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. See 38 C.F.R. § 4.71, Plate II. The Veteran contends that his service-connected left ankle disability was more severe than the 20 percent evaluation assigned prior to March 30, 2017 (the date of his temporary total rating) would indicate. Additionally, he contends that his ankle disability is more severe than the 40 percent rating currently assigned. The Veteran's left ankle disability was initially rated pursuant to DC 5299-5262. As of October 31, 2019, the Veteran's disability has been rated under DC 5270. Diagnostic Codes ending in "99" are used when there is no specifically applicable diagnostic code and the disability is rated by analogy, and DC 5262 is for impairment of the tibia and fibula. Historically, a May 1977 rating decision granted service connection for fracture, left ankle, residuals rated 10 percent disabling, effective July 1, 1976, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5299-5262, in contemplation a slight ankle disability. In a May 2002 rating decision, a 20 percent rating was assigned, pursuant to Diagnostic Codes 5299-5262, in contemplation of moderate ankle disability. The Veteran filed a claim for an increased rating on August 3, 2016. Therefore, the period on appeal begins August 3, 2015. Factual Background Turning to the evidence, VA treatment records include a July 2016 report which shows that the Veteran began taking prednisone to reduce left ankle pain. He reported that it made him more functional in that he could walk a short distance. In January 2017, the Veteran underwent a VA examination. The Veteran reported constant pain, swelling, stiffness, weakness, and giving way. He reported use of an ankle brace. Left ankle instability was noted on examination. The Veteran denied any flare-ups of his ankle disability. Range of motion measurements of ankle indicated dorsiflexion to 10 degrees and plantar flexion to 35 degrees. No pain was noted on examination. There was no evidence of pain with weight bearing. The examination revealed evidence of pain on passive range of motion testing and pain in non-weight bearing. The Veteran's right ankle is also damaged, therefore comparison to the opposite joint was inappropriate. Repetitive use testing did not cause additional pain, fatigue, weakness, or lack of endurance or any additional limitation of range of motion. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time because the examiner was unable to examine the Veteran over a period of time. However, there is no indication the examiner attempted to elicit information from the Veteran regarding limited functional ability with repeated use over time. Regarding functional loss or functional impairment, the Veteran had difficulty with prolonged standing and walking, stooping, squatting, pulling/pushing, sweeping and mopping. Functional loss was manifested by less movement than normal. There was no evidence of tenderness on palpation or crepitus. Muscle strength testing was reduced at 4/5 strength for plantar flexion and dorsiflexion. There was no evidence of muscle atrophy or ankylosis. Joint stability tests revealed suspected instability or dislocation. The Veteran underwent left ankle surgery in March 2017. Post-operation treatment notes indicate the Veteran was healing well. VA treatment records from July 2017 reveal range of motion of zero degrees in the left ankle. Physical therapy notes indicate the Veteran's range of motion did not improve between August 2017 and October 2017. Treatment notes from January 2018 indicate some improvement. However, the Veteran reported spasms and hammering at the left toes. It was recommended the Veteran add gabapentin and diclofenac for pain management. In March 2018, the Veteran reported stiffness in his toes and pain on the outside of this left ankle. However, the records indicate continued improvement. The Veteran was afforded a second VA examination in October 2019. The Veteran reported constant pain in his left ankle since his ankle surgery. The Veteran described daily flare ups marked by hours of swelling, stiffness, and sharp injection type pain. He noted that he could not walk during a flare and the pain was a 9 or 10 out of 10. The examiner noted the Veteran used a brace to help with pain, a cane to ambulate and wore orthopedic shoes. The Veteran reported that his disability significantly impaired his ability to drive a truck because he had to use a clutch with his left foot. Range of motion measurements of ankle indicated dorsiflexion to 0 degrees and plantar flexion to 5 degrees. Pain was noted on examination on rest or nonmovement. There was evidence of pain with weight bearing and moderate to severe tenderness throughout the left ankle on palpation. The examination revealed the Veteran was unable to move the left ankle due to left ankle fusion. Regarding functional loss and employment, the examiner found the Veteran's left ankle condition prevents running, jumping, climbing of stairs and ladders. The left ankle condition limits walking to less than 100 yards at a time, limits standing to 20 minutes, limits lifting/carrying/pushing/pulling of heavy objects, and limits kneeling and squatting. The left ankle had no muscle movement. The examiner noted the reduction in movement was entirely due to the claimed left ankle condition. There was evidence of muscle atrophy between the left knee and ankle. The examiner found the Veteran had left ankle ankylosis with an eversion deformity. VA treatment records include a March 2020 X-ray examination of the ankle which showed degenerative changes, moderate soft tissue swelling, and soft tissue edema were stable and unchanged. Analysis for the Period prior to March 30, 2017 After review of the evidence, the Board finds that a rating higher than 20 percent for the left ankle prior to March 30, 2017 is not warranted. A 30 percent rating under Diagnostic Code 5270, requires ankylosis in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion between 0 degrees and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5270. The Veteran's plantar flexion was 0 to 35 degrees, and dorsiflexion was 0 to 10 degrees, there is no indication that he was ankylosed in either of these measurements. Nor is there evidence that his functional impairment or flares were the equivalent of ankylosis meeting these requirements. Thus, a higher rating under Diagnostic Code 5270 is not warranted for this period. Under Diagnostic Code 5262, a higher 30 percent rating is warranted for malunion with marked knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Standard range of motion of an ankle is to 20 degrees of dorsiflexion and to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II (2016). Range of motion measurements of the Veteran's left ankle indicated dorsiflexion to 10 degrees and plantar flexion to 35 degrees. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to decreased range of motion, daily pain, and weakened movement. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that he is unable to stand for long periods due to increased pain in his ankle would not result in symptoms more nearly approximating a marked ankle disability. Regarding additional functional loss, the Board observes that VA examiners have noted the Veteran's complaints such as pain and difficulty walking, standing, and running. The Board has taken those complaints into consideration in its above discussion. However, the objective medical evidence of record is of greater probative value as to the Veteran's level of impairment than his assertions. Even considering his subjective complaints of pain and other symptoms, limitation of motion of the ankle has not been shown such that a higher rating would be warranted. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). The Board finds that the evidence does not support a finding that the Veteran's left ankle disability more closely approximates a 30 percent rating prior to June 2, 2017. The Board notes that there are not any other Diagnostic Codes related to disabilities of the ankle that would provide for a higher disability rating. Thus, there are no other provisions to consider. See 38 C.F.R. § 4.71a. The Board also acknowledges that the Veteran has a residual scar from the left ankle fusion. However, service connection was established for that scar by a July 2020 rating decision, evaluated at 10 percent, and the Veteran has not appealed that rating. As such, that matter is not presently before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In sum, the Board finds that the preponderance of the evidence is against the assignment of an increased rating greater than 20 percent, for the left ankle disability prior to June 2, 2017. Analysis for the Period beginning March 30, 2017 The Board finds that following the period of convalescence from March 30, 2017 to June 1, 2017, the Veteran's left ankle disability was manifested by ankylosis with an eversion deformity. There are no applicable diagnostic codes applicable to the ankle that provide for a rating greater than 40 percent. Diagnostic Code 5270, governing evaluation of ankylosis of the ankle maxes out at 40 percent, as does Diagnostic Code 5262, governing impairment of the tibia and fibula with ankle disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5270. Moreover, the Veteran's service-connected disability does not manifest with symptoms that can be separately compensated, all his current symptoms are compensated by his assigned 40 percent rating. Hence, assignment of separate ratings would be pyramiding, which is not permissible. See Esteban, 6 Vet. App. at 261. Consequently, for the period after March 30, 2017, the Veteran is in receipt of the maximum schedular rating for his left ankle disability, exclusive of the period where a temporary total rating has been assigned. Additionally, referral for extraschedular consideration is not indicated as the evidence does not show symptomatology that is not contemplated by the rating criteria. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In this case, the reported symptomatology of pain, swelling, and stiffness, including his difficulty with walking, climbing stairs, driving, needing a cane and brace are contemplated by the rating criteria. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as instability of station, weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, weight bearing, plus use of assistive devices. 38 C.F.R. §§ 4.45, 4.59; Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018); Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Additionally, for all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. Therefore, the record does not reflect additional symptomatology that is not contemplated by the rating criteria. Consequently, the Board finds referral for consideration of an extraschedular rating is not warranted in the instant case, and a rating in excess of 40 percent for the Veteran's left ankle disability is denied. 2. Entitlement to a TDIU is granted VA will grant a total rating for compensation purposes based on unemployability 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 gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment.' 38 C.F.R. § 4.16 (a) (2017). The record shows that the Veteran's TDIU claim was raised in the context of his increased rating claims for his left ankle and in statements advanced in his June 2017 VA Form 9. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, in light of the Veteran's contentions, the Board finds that the issue of a TDIU is raised by the record and is properly before the Board. In the case at hand, the Veteran does not meet the criteria for a TDIU on a schedular basis as he was assigned a total combined rating between 20 and 50 percent for the entire period on appeal. 38 C.F.R. § 4.16 (a). However, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran "was ineligible for 4.16(b)-TDIU consideration." Id. However, the Board finds that Bowling and Floyd's prohibition against granting an extraschedular TDIU in the first instance has been implicitly overruled through the issuance of the Court's decisions in Thun and Anderson, as well as the Federal Circuit's affirmance of Thun and its decisions in Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) and Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). It simply defies logic and the intent of the law that the Board is able to review de novo the determinations of the Direction of Compensation yet must send it to him in the first instance, even when the Board finds that the evidence of record already shows the Veteran is incapable of obtaining or engaging in substantially gainful employment. Moreover, in a recent precedential decision, one of the Judges of the Court, in a concurring opinion, disagreed with the holding in Bowling and, cited Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992), in determining that the Board had the authority to award extraschedular TDIU in the first instance. See Wages v. McDonald, No. 13-2694, 2015 WL 293616, at *6 (Jan. 23, 2015) (Kasold, J., concurring). The Wages majority separately noted that, "[i]n sum, the Secretary's contention that § 4.16(b) vests an extraschedular TDIU award solely within the nonreviewable discretion of the Director conflicts with the statutory mandate that the Board provide the final decisions on section 511(a) benefits determinations. Accordingly, this contention is rejected." Id. at *5. (emphasis added). Finally, the majority, in a footnote, observed the current absurdity inherent in the § 4.16(b) process, noting that "Although it is not clear how the Secretary's approach of inserting the Director into the regulatory process while refusing to recognize the Director as the agency of original jurisdiction fits within the statutory scheme for adjudicating VA benefits claims, see, e.g., 38 U.S.C. § 7105 (providing for Board review of decisions by an agency of original jurisdiction), we need not further address this issue in the absence of a direct challenge to that process.") Id. at *5 fn 4 (emphasis added). Therefore, given the Board's reasoning as outlined above, it will not make the Veteran wait for any further processing by VA. See Delisio v. Shinseki, 25 Vet. App. 45, 63 (2011) (Lance, J., concurring) ("There is an unfortunateand not entirely unfoundedbelief that veteran's law is becoming too complex for the thousands of regional office adjudicators that must apply the rules on the front lines in over a million cases per year."); cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (noting that an unnecessary remand "perpetuates the hamster-wheel reputation of veterans law"). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Based on the evidence of record, the Board finds that the Veteran's service-connected left ankle disability renders him unable to obtain or sustain substantially gainful employment. The Veteran submitted a VA 21-8940 in October 2019. The Veteran indicated that he completed 4 years of high school and obtained a commercial driver's license. The Veteran's employment history includes work as an electrician in the United States Air Force Reserves from 1980 to 1988. After service, the Veteran worked in avionics electronic and fiberoptics/CATV until 2000. Thereafter, in 2000, he became a long-haul truck driver. He indicated that he last worked as a truck driver in December 2016 at the advice of his physician who recommended the Veteran for left ankle surgery, and reported he became too disabled to work as of March 30, 2017. The Board notes that the October 2019 VA examination reflects the Veteran's left ankle condition prevents running, jumping, climbing of stairs and ladders. The left ankle condition limits walking to less than 100yards at a time, limits standing to 20 minutes, limits lifting/carrying/pushing/pulling of heavy objects, and limits kneeling and squatting. The Veteran has competently and credibly reported that he could no longer operate the clutch to drive trucks due to his left ankle disability. Notably, VA treatment records have consistently noted the Veteran has been unable to flex his left ankle since his March 2017 surgery. Therefore, the preponderance of the evidence supports that he can no longer maintain employment as a long haul truck driver. The Board notes that the Veteran's limitations on standing, kneeling and squatting as well as lifting/carrying/pushing/pulling heavy objects would undoubtedly impact his ability to obtain work as an electrician. More importantly, the Veteran has not held a job in that field or obtained any relevant training in over twenty years. Given the overall picture of the Veteran's physical limitations and considering his education and employment history, the Board finds that he is not capable of obtaining or maintaining substantial gainful employment based on his left ankle disability. Accordingly, TDIU is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.