Citation Nr: 21063816 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-39 753A DATE: October 18, 2021 ORDER From November 21, 2017, entitlement to a rating of 30 percent, but no higher, for left peroneal tendinosis with subluxating peroneal tendon is granted. Entitlement to an extension of a temporary total evaluation until November 7, 2014 for service-connected left ankle condition requiring convalescence is granted. REMANDED Entitlement to an effective date prior to June 1, 2019 for a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is remanded. FINDINGS OF FACT 1. From November 21, 2017, the Veteran's left peroneal tendinosis with subluxating peroneal tendon is manifested by, at worst, dorsiflexion limited to 10 degrees and stiffness of the ankle such that it is stuck in a fixed position with severity that is akin to ankylosis. 2. The Veteran's left ankle surgery necessitated the use of a wheelchair or crutches. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, but no higher, for left peroneal tendinosis with subluxating peroneal tendon have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5024-5271. 2. The criteria for an extension of temporary total convalescence for left ankle until November 7, 2014 have been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1981 to May 1982. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board denied the claims addressed herein. The Veteran appealed the Board decision to the Court of Appeals for Veterans Claims (CAVC). In a July 2021 Order, CAVC granted the motion for a Joint Motion for Partial Remand (JMPR) for the Board to address evidence related to the claims for increased rating and extension of total disability for the left ankle disability, and for an earlier effective date of TDIU. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the adequacy of assigned disability ratings, consideration is also given to factors affecting functional loss. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use, including that experienced during flare ups. 38 C.F.R. § 4.40. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 4243 (2011) (holding that pain alone does not constitute functional loss and is just one fact to be considered when evaluating functional impairment). 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Separate 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). 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. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The Board has reviewed the recent changes to rating codes for the musculoskeletal system that were effective in February 2021, but finds that are not more favorable than those in effective prior to that dates. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). 1. Entitlement to a rating in excess of 20 percent for left peroneal tendinosis with subluxating peroneal tendon. The Veteran contends that her left peroneal tendinosis (hereinafter, left ankle disability) warrants a rating in excess of 20 percent. In granting an increased evaluation of 20 percent based on a marked disability, the June 2020 Board decision considered the Veteran's symptoms of pain, swelling, and difficulty weight bearing. A 20 percent rating was granted throughout the period under appeal, excluding the periods of a 100 percent rating for convalescence from surgery. The Board will not herein reiterate the reasons for the increase to a 20 percent rating, but will instead specifically address whether the severity of Veteran's left ankle disability was akin to ankylosis, as required for an even higher rating. Thus, the discussion below is limited to the issue subject to the JMPR, which is whether a rating in excess of 20 percent is warranted on the basis of left ankle ankylosis. Consideration will be given to evidence throughout the period under appeal, excluding the periods of a 100 percent rating for convalescence from surgery. The Veteran's left ankle disability has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Diagnostic Code 5271 provides a 20 percent rating for marked limited ankle motion. 38 C.F.R. § 4.71a. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The Board observes that recent revisions to the criteria of Diagnostic Code 5271, effective February 7, 2021, clarify that prior regulatory references to "marked" means less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. 85 Fed. Reg. 76453 (Nov. 30, 2020). 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 claim 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. Also included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate impairment resulting from service-connected ankle disorders, including Diagnostic Code 5270 (ankylosis of the ankle); Diagnostic Code 5272 (ankylosis of subastragalar or tarsal joint); Diagnostic Code 5273 (malunion of os calcis or astragalus); and Diagnostic Code 5274 (astragalectomy). The ankle rating criteria for Diagnostic Code 5270, which governs ankylosis, did not change. Under diagnostic code 5270, a 40 percent rating is warranted when there is ankle 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. A 30 percent rating is warranted when there is ankle ankylosis in plantar flexion, between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. A 20 percent rating is warranted for ankle ankylosis in plantar flexion less than 30 degrees. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992). As the Veteran is in receipt of the maximum schedular rating based on limitation of motion, the Board will consider whether there is evidence that her flare-ups were of sufficient severity to more nearly approximate the functional equivalent of ankylosis. Cf. Chavis v. McDonough, 34 Vet. App. 1 (2021) (ankylosis in VA's General Rating Formula for Diseases and Injuries of the Spine can be met with evidence of the functional equivalent of ankylosis during a flare). Turing to the evidence of record, the Board notes that a February 2015 VA examination report reflected that the Veteran was able to bear weight on the left ankle but for only the "shortest" periods of time. It was further noted that she could only stand with a crutch for a few minutes and/or walk with a crutch for about 50 yards, and she had severe pain when climbing stairs. In a November 2017 VA examination, the examiner noted that the Veteran had dorsiflexion of 0 to 10 degrees and plantar flexion of 0 to 25 degrees with loss of muscle strength at 3 out of 5 in both plantar flexion and dorsiflexion. It was noted that the Veteran's left ankle was manifested by dorsiflexion limited to 10 degrees; functional loss that limited the Veteran's ability to stand, walk, run, use stairs, and jump; an inability to pick her foot up to avoid objects when walking; and severe pain when climbing stairs. In a May 2019 VA examination report, the examiner found dorsiflexion limited to 10 degrees and plantar flexion limited to 20 degrees following repetitive use. The Board has considered whether the Veteran could receive a higher rating pursuant to Diagnostic Code 5270, for ankylosis of the ankle. There is no medical evidence that the Veteran has a diagnosis of ankylosis of the left ankle. However, the Board finds that there is sufficient evidence demonstrating that her left ankle is in a fixed position or ankylosed. The VA examination reports, VA treatment records, and private treatment records contain evidence of a range of motion akin to ankylosis. The Board finds that when considering functional limitations due to pain identified in 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the criteria in DeLuca and Mitchell, the Veteran's functional loss equates to ankylosis of the ankle. The medical evidence of record indicates that she does not maintain mobility in the left ankle, as they document her symptoms of stiffness an inability to move or lift her foot. Additionally, her ability to walk was described as "profoundly limited"; and the loss of muscle strength was described as 3 out of 5 in both plantar flexion and dorsiflexion. Accordingly, as the evidence supports a finding that her left ankle disability more closely approximates ankylosis shown in dorsiflexion between 0 and 10 degrees, a rating of 30 percent, but no higher, is warranted. A rating of 40 percent is not warranted because the evidence does not show ankylosis in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. In sum, as there is evidence that the Veteran's ankle was fixed in position or ankylosed in dorsiflexion between 0 and 10 degrees, a rating of 30 percent, but not higher, for the left ankle disability is granted. 38 U.S.C. § 5107(b). 2. Entitlement to an extension of a temporary total evaluation beyond July 1, 2014 for a service-connected left ankle condition requiring convalescence. The Veteran contends that a 100 percent evaluation for service-connected left ankle condition requiring convalescence, should be extended beyond July 1, 2014. A temporary total (100 percent) disability rating for convalescence purposes will be assigned, for up to three months, without regard to other provisions of the Schedule, when it is established that treatment of a service-connected disability results in: (1) Surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight bearing prohibited); (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. Furthermore, extensions of temporary convalescent ratings, for up to three months beyond the initial three months also are available for items (1), (2), and (3) above; and approval may be obtained for extensions of one or more months, up to six months beyond the initial six-month period, for items (2) or (3) above. 38 C.F.R. § 4.30(b). In Felden v. West, 11 Vet. App. 427, 430 (1998), the Court, citing Dorland's Illustrated Medical Dictionary374 (28th ed. 1994), defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury." The Court also defined recovery as "the act of regaining or returning toward a normal or healthy state." Id., citing Webster's Medical Desk Dictionary 606 (1986). In other words, the purpose of a temporary total evaluation pursuant to 38C.F.R. §4.30 is to aid the Veteran during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. The Court has also held that notations in the medical record as to the Veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30. See Seals v. Brown, 8 Vet. App. 291, 296-297(1995); Felden v. West, at 430 Here, the Veteran was awarded a temporary convalescent evaluation of 100 percent for the period from February 7, 2014 to July 1, 2014, based on her February 2014 surgery for service-connected left ankle disability. Following the temporary convalescent period, the Veteran was assigned a 10 percent rating for a left peroneal tendonitis with subluxating peroneal tendon. C.F.R. § 4.71a, DC 5271. After a review of the record, to specifically include evidence not already addressed in the prior Board decision, the Board finds that the Veteran should be granted an extension of a temporary total rating for convalescence until November 7, 2014. The Veteran underwent a left ankle surgery on February 7, 2014. February 2014 private post-operative report noted that following her surgery, she had a diagnosis of left peroneal longus tendon tear. The operating physician indicated that, at discharge, the Veteran was provided with crutches. Non-weight bearing status was recommended. In February 2014, the Veteran requested a walker due to surgery on her left foot. Her private treatment records continued to show pain associated with the left ankle, and VA treatment records noted that she used an ankle-foot orthotic and requested a walker for assistance. In an April 2014 primary care note, the clinician indicated that the Veteran had surgery on her left ankle and reported some left knee pain. In an August 2014 letter from Veteran's private physician, he stated that as the Veteran would be unable to work for the next six weeks due to her left ankle condition, her period of convalescence should be continued. In an October 2014 letter, the same physician opined that the Veteran had been "unable to obtain and maintain gainful employment since November 2012" due to her ankle, and it was unknown when she would be able to "return to work at full duty capacity." In November 2014, the private physician opined that due to the nature of Veteran's condition, she would be unable to work for the next three months, and her period of convalescence should be continued. Indeed, during the February 2015 VA examination, the examiner found that Veteran had to constantly use crutches and was unable to bear weight on the ankle for "any but the shortest times." The Board finds that temporary total convalescence should be extended until November 7, 2014. The weight of competent evidence shows that a further extension of the Veteran's temporary total evaluation until November 7, 2014, but no later, is warranted. The Veteran continued to experience left ankle impairment beyond July 1, 2014, and the evidence reflects that the surgical procedure necessitated house confinement or the use of a wheelchair or crutches until February 2015. Based on such finding that the Veteran's ankle surgery resulted in the need for the use of a wheelchair, she is eligible for up to six months additional beyond the initial three months for convalescence. Here, she underwent surgery on February 7, 2014, and is eligible for up to a total of nine months following the surgery, for convalescence. As determined by the medical professional in the February 2015 VA examination report, the Veteran had to constantly use crutches and was unable to bear weight on the ankle for "any but the shortest times." The Board finds this evidence probative as to the issue and also as to the date until which a temporary total rating based on convalescence should be extended. As the evidence is at least in relative equipoise as to whether her surgery necessitated the use of a wheelchair and required convalescence, the Board resolves reasonable doubt in the Veteran's favor. Accordingly, a temporary total rating for convalescence is granted until November 7, 2014, the maximum extension available. 38 C.F.R. § 4.30(b). REASONS FOR REMAND 3. Entitlement to an effective date prior to June 1, 2019 for a TDIU on an extraschedular basis is remanded. The Veteran contends that prior to June 1, 2019, her service-connected disabilities prevent her from securing and following substantially gainful employment. On September 18, 2019, she filed an application for unemployability, indicating TDIU was warranted based, in part, on her left knee disability. As she had a pending increased rating claim for the left ankle, the claim for TDIU was part and parcel of her increased rating claim. Thus, pursuant to the holding in Rice, the instant appeal for TDIU stems from the underlying claim for increased rating claims outline in her claim for TDIU. On that basis, the VA may proceed to consider whether TDIU is warranted from November 19, 2014, the date of claim for her left knee ankle. Harper, 30 Vet. App. at 359; see also Rice v. Shinseki, 22 Vet. App. 447 (2009); Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). The Veteran is not in receipt of a combined rating of 70 percent until June 1, 2019, when she was rated 60 percent for her left knee disability. As such, prior to June 1, 2019, she did not meet the schedular criteria for a TDIU. However, if the schedular criteria are not met, TDIU may still be granted on an extraschedular basis. See 38 C.F.R. § 4.16 (b). The rating boards are required to submit to the Director, Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). 38 C.F.R. § 4.16 (b). Here, the Board finds that the claim warrants referral to the Director, Compensation and Pension Service. In an October 2014 letter, the Veteran's private physician opined that the Veteran had been "unable to obtain and maintain gainful employment since November 2012" due to her ankle, and it was unknown when she would be able to "return to work at full duty capacity." The Veteran's medical providers agreed that she had been "unable to obtain and maintain gainful employment since November 2012 due to her ankle condition," none of her clinicians had addressed the possibility that she could engage in sedentary work, "other than duties requiring walking and standing." Regarding her ability to perform sedentary work, the Veteran's private physician noted that she had been prescribed many months of convalescence that resulted in VA awarding her temporary total ratings from February 7, 2014, through July 1, 2014, and July 20, 2017, through June 1, 2019. The Board finds that there is evidence the Veteran's knee and ankle impairment prevents her from securing and following substantially gainful employment. First, the record indicates that the Veteran worked as a nurse. Such duties, including walking and standing for prologued periods of time, are limited by her service-connected disabilities. Additionally, such duties are inconsistent with sedentary employment. Based on the above relevant evidence, to include statements made by the Veteran's private physician that she was unable to obtain and maintain substantially gainful employment since November 2012, the Board finds that referral to the Director of Compensation Service for extra-schedular consideration under 38 C.F.R. § 4.16(b) is warranted. The matter is REMANDED for the following action: Refer the claim for entitlement to an extraschedular TDIU to the Director, Compensation and Pension Service for a determination as to whether the Veteran is entitled to assignment of a TDIU prior to June 1, 2019 under the provisions of 38 C.F.R. § 4.16 (b). L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Wilson, 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.