Citation Nr: 21063523 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 12-05 318 DATE: October 14, 2021 ORDER An initial rating greater than 10 percent disabling for the service-connected residuals of left ankle sprain prior to September 1, 2020 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from August 16, 2017 is granted. FINDINGS OF FACT 1. The Veteran's residuals of left ankle sprain was manifested by no more than moderate limited motion of the ankle prior to September 1, 2020. 2. The evidence of record shows that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities from August 16, 2017. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for the service-connected residuals of left ankle sprain prior to September 1, 2020 have not been met. 38 U.S.C. §§ 1155, 5107(2012); 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Codes 5270-71 (2020). 2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) from August 16, 2017 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Marine Corps from July 2004 to October 2007 including service in Iraq. He was awarded the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in February 2010 and a Statement of the Case (SOC) was issued in February 2012. The Veteran perfected an appeal by submitting a timely VA Form 9 in March 2012. The issue was previously before the Board. Most recently in March 2021, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the RO to: (1) request range of motion measurements taken during March 2019 to April 2019 from a private chiropractor, (2) obtain a medical opinion addressing the severity of the Veteran's left ankle sprain residuals from July 1, 2009 to September 1, 2020; (3) request the Veteran to provide a detailed educational, vocational, and employment history from July 2009 to the present; (4) forward a VA Form 21-4192; and (5) undertake any additional development for the TDIU claim deemed warranted. In March 2021, the Board granted an increased rating of the Veteran's residuals of left ankle sprain to 20 percent effective September 1, 2020. The Board's decision has not been appealed to the U.S. Court of Appeals for Veterans Claims (Court) and the issue of a rating greater than 20 percent for the left ankle from September 1, 2020 is no longer on appeal to the Board. In March 2021, the AOJ implemented that award and also notified the Veteran to return a VA From 21-8940 and to, if possible, include a VA Form 21-4192. The AOJ also notified the Veteran that a completed VA Form 21-4142 or a VA Form 21-4142a was necessary "so that we can request treatment records from your private medical sources." The Veteran was afforded a VA examination for his ankle in May 2021, a supplemental statement of the case (SSOC) was issued in June 2021 addressing the rating prior to September 1, 2020, and a corresponding rating decision was issued on the same day denying the claim of TDIU. After additional medical evidence was associated with the Veteran's file, another SSOC was issued in July 2021. In August 2021, the Veteran was afforded yet another VA examination for residuals of left ankle sprain. Following the VA examination, the AOJ issued a rating decision in September 2021 "increasing" the rating of left ankle ankylosis (previously rated as residuals of left ankle sprain) to 30 percent effective August 30, 2020. The record of the Veteran's current evaluations, however, suggest that the increase in rating was not applied correctly, with a 20 percent applying from September 1, 2020 rather than the increased 30 percent rating. Nevertheless, the rating from September 1, 2020 as granted by the Board is not on appeal. In September 2021, the Veteran's representative contended that the Veteran did not receive a "current, completed VA Form 21-8940" and that they waived "local jurisdiction on these documents in order to allow review by the BVA." As an initial matter, the Board finds that there is no evidence of any returned mail or records suggesting that any of the notices sent by the Board or the AOJ were not received by the Veteran. A presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004) (holding that "[t]he presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.). An appellant's assertion of nonreceipt alone does not constitute clear evidence to rebut the presumption of regularity. Miley v. Principi, 15 Vet. App. 97 (2001). The presumption of regularity extends to VA's ministerial acts of mailing decisional and notice documents to claimants. Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (applying the presumption of regularity to the RO's mailing of a rating decision). In the absence of clear evidence to the contrary, the presumption of regularity is applied, and it is presumed that at least the Veteran received all of the notices sent by the AOJ, to include a VA Form 21-8940 that was sent with the March 2021 notice. The Veteran did not present clear evidence to rebut the presumption of regularity. To the contrary, the Veteran and the Veteran's representative's timely responses and submissions, as well as the Veteran's attending the VA examinations suggest that all notices sent were received by both the Veteran and his representative. The Board also points out that the duty to complete the VA Form 21-8940, lies with the Veteran as the form requires the signature of the Veteran rather than any signatures from the Board or the AOJ. In summary, the presumption of regularity has not been rebutted and the March 2021 notice, as well as VA Form 21-4192 as directed by the Board, is presumed to have been received by the Veteran. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 1. A rating greater than 10 percent prior to September 1, 2020 for the service-connected residuals of left ankle ankylosis The Veteran contended that he is entitled to an initial rating greater than 10 percent for left ankle ankylosis (previously claimed as residuals of left ankle sprain). In March 2021, the Board granted a rating of 20 percent from September 1, 2020 and remanded the remaining claim of an initial rating greater than 10 percent for left ankle ankylosis from July 1, 2009 to September 1, 2020. In September 2021, the AOJ granted a rating of 30 percent disabling for left ankle sprain effective August 30, 2020 as the Veteran submitted a VA Form 21-526EZ on that date. Thus, the remaining claim on appeal is whether the Veteran is entitled to a rating greater than 10 percent for left ankle ankylosis at any period between July 1, 2009 and August 30, 2020. As an initial matter, as discussed above, the Board finds that the AOJ notified the Veteran and asked him to submit a completed VA Form 21-8940 in order to obtain the private medical treatment records from July 1, 2009 to September 1, 2020. The Veteran did not submit a completed VA Form 21-8940 and both the May 2021 and June 2021 VA examiners examined the Veteran and gave their medical opinion based on the evidence of record. As the Veteran failed to submit the form necessary to obtain the private medical records, the Board finds that no further development needs to be taken to obtain said records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence"). The Veteran's residuals of a left ankle fracture are rated under Code 5271 (for limitation of ankle motion). Prior to February 7, 2021 Code 5271 provided for a 10 percent rating for moderate limitation of motion and a 20 [maximum] percent rating for marked limitation. The terms "moderate" and "marked" were not defined within the Code. Normal ranges of ankle motion are dorsiflexion 0 to 20 degrees and plantar flexion 0 to 45 degrees. 38 C.F.R. § 4.71a , and Plate II. From February 7, 2021, Code 5271 provides for a 10 percent rating for moderate limitation of motion (noted as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), and a 20 [maximum] percent rating for marked limitation of motion (noted as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). See 38 C.F.R. § 4.71a. However, the new rating criteria may not be applied prior to the effective date of the change of regulation. Therefore, the earlier version is applicable. Nevertheless, the Board finds the new more specific definitions for the 10 and 20 percent ratings to be informative when applying the previous subjective terms. The only private treatment record associated with the Veteran's file from the chiropractor discussed in the prior Board decision was submitted in September 2019. The private practitioner wrote that the Veteran was seen on March 5, 2019 for an "initial examination." In March 2019, the Veteran described the frequency and quality of pain to be from 26 to 50 percent of awake time and that it was dull and sharp. The Veteran also reported that the onset of pain was "traumatic" and that the symptoms were present "for the past several years." Treatment records show the Veteran visiting the chiropractor several times from March to April 2019, but range of motion was not recorded. Although the Veteran reported occasions of "frozen ankle" there is no other supporting information to show that there was ankylosis or functional ankylosis. Throughout the visits, under "objective findings," the chiropractor did not list left ankle among "ROM Concern(s)" while listing other concerns such as cervical left rotation, cervical right rotation, thoracic extension, lumbar flexion, right shoulder extension, and right shoulder abduction. The Veteran underwent a VA ankle examination in November 2008. The examiner noted the Veteran's report of a left ankle inversion sprain in 2006 that required physical therapy without relief of stiffness and pain. The Veteran was able to stand for one hour and walk one to three miles with a normal gate. Range of motion was 5 degrees dorsiflexion and 40 degrees plantar flexion. X-rays showed no fractures, dislocations, loose bodies or abnormal soft tissues. The left ankle was not again examined until May 2015. Range of motion was 10 degrees dorsiflexion and 20 degrees plantar flexion with no additional loss on repetition. The Veteran denied any flare-ups and the examiner noted no instability but some mild muscle atrophy. The Veteran reported that he was unable to stand for more than 20 minutes. The Veteran underwent another VA left ankle examination in December 2017. The Veteran reported that he did experience flare ups after repetitive weight bearing activity and that the pain and reduced range of motion limited running, walking, stair climbing, carrying, and weight bearing activity. Range of motion was 15 degrees dorsiflexion and 30 degrees plantar flexion. The examiner noted an inability to estimate additional loss of function on repetition or during flare ups. Therefore, this examination is not adequate because the examiner did not explain why an estimate could not be provided based on the Veteran's description of limitations. See BVA Remand, April 2020. In September 2020, the range of motion for the Veteran's left ankle was 15 degrees for dorsiflexion and 25 degrees for plantar flexion, with reduced range of motion after repetitive use over time estimated at 10 degrees dorsiflexion and 20 degrees plantar flexion. During flare-ups, the examiner opined that range of motion was 5 degrees for dorsiflexion and 10 degrees for plantar flexion. The examiner did not diagnose the Veteran as having ankylosis. Prior VA examinations from November 2008 and December 2017 also do not show any ankylosis. In November 2008, the Veteran's left ankle range of motion for dorsiflexion was 5 degrees and 40 degrees for plantar flexion. In December 2017, the range of motion for left ankle dorsiflexion was 15 degrees and 40 degrees for plantar flexion. In May 2021, a VA examiner reviewed the Veteran's file to determine the current and, if possible, past severity of his left ankle sprain residuals. The examiner noted that she reviewed all of the evidence of record and that the Veteran "was physically fit, able to run and play softball, and snorkel until and through 2012 when he injured his right ankle" and that his left ankle had "remained stable, no 'frozen ankle' on imaging, no specific left ankle evaluation and/or treatment even after right ankle injury, when similar injury to the left ankle (exacerbation or aggravation) can be expected, none was found." The examiner also cited imaging of the left ankle in 2012 that showed a "normal left ankle" with no changes compared to November 2008. Then the examiner opined that there was no or insufficient medical evidence from July 1, 2009 to September 1, 2020 showing any changes in the severity of the Veteran's left ankle sprain residuals and that the subjective complaints were not supported by objective or radiological medical evidence. Regarding the chiropractor's opinion of record, the examiner opined that it was inconsistent with the medical evidence and that the chiropractor "primarily relied on the Veteran's allegations. For information only as relevant to the claim for a TDIU below, on June 24, 2021, the Veteran was afforded a VA examination where he was diagnosed as having residuals of left ankle sprain. The Veteran reported worsening pain due to chronic pain since the "last C&P exam 2020" but did not report any flare-ups. Range of motion for plantar flexion was 15 degrees and dorsiflexion was 10 degrees. These measurements were the same for both active and passive motion. Estimated range of motion immediately after repeated use over time based on information procured from relevant sources, including the statements of the Veteran, were 10 degrees for plantar flexion and 5 degrees for dorsiflexion. There was no muscle atrophy, but there was ankle ankylosis that was described as 20 degrees for plantar flexion and 10 degrees for dorsiflexion. Both the anterior drawer test and talar tilt test showed absence of firm end point with asymmetric or excessive motion. The examiner also opined that the left ankle disability impacted the Veteran's ability to perform occupational tasks. After reviewing the evidence of record, the Board finds that the Veteran's residuals of left ankle sprain did not result in marked limited motion of the left ankle, less than 5 degrees dorsiflexion, less than 10 degrees plantar flexion, or ankylosis prior to September 1, 2020. There are no range of motion measurements that contradict the VA examinations of record. The private chiropractor did not measure range of motion for the Veteran's left ankle and also did not list the left ankle among "ROM concerns" despite the Veteran specifically complaining about his left ankle and listing numerous other joints. Moreover, the private chiropractor stated that the Veteran's "initial examination" was in March 2019, indicating that there are no treatment records prior to March 2019. The Board also observes that, despite being diagnosed as having left ankle ankylosis for the first time in June 2021, that the Veteran was assigned a higher rating effective August 30, 2020 by the AOJ. This higher rating was granted despite the September 1, 2020 VA examination specifically finding that the Veteran did not have left ankle ankylosis nor residuals of a left ankle sprain that manifested in marked limitation of motion. Although this would warrant less than a 30 percent rating from August 30, 2020 to June 24, 2021, this rating is not on appeal and the Board does not have jurisdiction to disturb the 30 percent rating currently in effect. For the foregoing reasons, the preponderance of the evidence reflects that the criteria for a 30 percent rating prior to August 30, 2020 for the Veteran's service-connected left ankle sprain residuals have not been met or more nearly approximated. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities In the April 2020 Board decision, the Board found that the Veteran's claim for entitlement for TDIU was inextricably intertwined with the Veteran's claim for increased ratings. In the March 2021 Board decision, the Board found that the Veteran's claim was still pending although the Veteran had a 100 percent combined rating effective November 30, 2018 and that entitlement from November 30, 2018 was not moot as he had not been awarded special monthly compensation under 38 U.S.C. § 1114(s). Then, the Board remanded the claim after finding that the Veteran's service-connected disabilities negatively impacted his ability to work and that the Veteran's employment from July 1, 2009 to the present were unclear. As discussed above, the AOJ forwarded the VA Form 21-4192 to the Veteran as directed as well as other forms relevant to adjudicating the claim of TDIU. There is no evidence of record that the forms were not delivered, and the Veteran's representative specifically only contended that a "completed" VA Form 21-8940 was not delivered. The presumption of regularity was not rebutted, and the Veteran did not submit any completed forms. Thus, the Board finds that no further development needs to be taken to obtain said records and will decide the claim based on existing evidence of record. See Wood, 1 Vet. App. at 193. After reviewing the evidence of record and resolving doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a TDIU from October 24, 2017. As discussed in detail below, the Veteran was able to obtain and maintain gainful employment prior to August 16, 2017 despite having a combined disability rating of 90 percent. On August 16, 2017, however, the Veteran reported worsening PTSD symptoms that eventually led to him being on leave without pay (LWOP) and spending "less time working at VA" from September 2017 and leading to his eventual medical retirement in July 2018. VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 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(a), 4.16(a). As the Veteran is in receipt of a 90 percent rating from July 1, 2009 to November 29, 2018 and a 100 percent rating from November 30, 2018, the Veteran meets the aforementioned requirements throughout the period on appeal. His service-connected disabilities include posttraumatic stress disorder (PTSD) rated at 70 percent from July 1, 2009. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: 1) the veteran's history, education, skill, and training; 2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, considering factors that may be relevant that include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and 3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with factors that may be relevant that include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 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. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There is no evidence of record, medical or otherwise, that support a finding of entitlement to TDIU prior to August 16, 2017 as the Veteran continued working, albeit in a lesser capacity thereafter until July 2018. Although the Veteran's combined disability rating was at 100 percent prior to July 1, 2009 and 90 percent from July 1, 2009 to November 30, 2018, there were increases in individual disability ratings, specifically on March 25, 2015 when he was assigned a 10 percent rating for temporomandibular joint disorder and on May 20, 2015 when he was assigned a 30 percent rating for left brachial plexus palsy neuropraxia as well as a 20 percent rating for gunshot wound in the left anterior neck to left posterior trapezius. The Board, however, finds that these increases did not affect the Veteran's ability to obtain and maintain gainful employment as the Veteran was working at the VA at this time. In February 2016, the Veteran was afforded a VA examination for his temporomandibular joint disorder, but the VA examiner opined that the Veteran's disability did not impact his ability to work. From June 2016 to March 2017, the Veteran's report show that the Veteran was able to maintain gainful employment. In June 2016, the Veteran reported that he needed a water bottle in hand at all times while at work, in February 2017, the Veteran reported that he noticed light sensitivity at work, and in March 2017, the Veteran reported that he was working in a dental clinic in the VA. On August 16, 2017, however, the Veteran reported struggling significantly at work and that the other Veterans' war stories caused significant anxiety and panic attacks at times and that he needed to take time off work to calm himself down. In September 2017, the Veteran reported that leave without pay (LWOP) and less time working at VA had helped his PTSD symptoms. In October 2017, the Veteran requested a revised letter for medical retirement. The Board finds that these reports indicate that the Veteran was working less than full time starting August 16, 2017 and therefore unable to maintain "substantially gainful employment." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991) ("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"). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. §§ 4.16(a). In December 2017, the Veteran was afforded a VA examination for his service connected posttraumatic stress disorder. The Veteran reported that he was a medical support assistant (MSA)(an administrative position) at the VA and worked there for four years and that he was currently on LWOP. The Veteran also mentioned "a medical retirement from VA" that caused "bad feelings among co-workers" and that he was startled at work when someone walked up on him and touched him "somewhat forcefully." The Veteran also reported that he was in college. In March 2019, the Veteran reported that he retired due to his service-connected PTSD in July 2018. For the foregoing reasons, the evidence is at least in equipoise that the criteria for a total disability evaluation based upon individual unemployability due to all service-connected disabilities were met on August 16, 2017 when the Veteran first reported worsening PTSD symptoms. Resolving doubt in favor of the Veteran, the Veteran's claim for TDIU is granted effective August 16, 2017. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.