Citation Nr: 21065744
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 17-47 964
DATE:  October 27, 2021

ORDER

Entitlement to a 10 percent rating for a left tibia/fibula fracture is granted.

Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) prior to March 30, 2017 is granted.

Entitlement to service connection for a right ankle or leg disorder, to include as secondary to service connected left tibia/fibula fracture, is denied. 

FINDINGS OF FACT

1. Throughout the period on appeal, his left tibia/fibula fracture manifested in pain without limitation of range of motion even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy. 

2. For the appeal period prior to March 30, 2017, the Veteran's service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment.

3. At no time during the pendency of the claim does the Veteran have a current diagnosis of a right ankle disorder, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim.

CONCLUSIONS OF LAW

1. The criteria for an initial 10 percent rating for left tibia/fibula fracture have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71, Diagnostic Code 5271.

2. The criteria for entitlement to a TDIU prior to March 30, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 

3. The criteria for service connection for a right ankle disorder have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 2005 to November 2013, to include service in Southwest Asia. The Veteran's awards and decorations for his service include a Combat Infantryman Badge and a Valorous Unit Award, among many others.

These matters come to the Board of Veterans' Appeals (Board) on appeal from October 2015 and August 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Muskogee, Oklahoma. 

The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) of the Board in November 2020. A transcript of the hearing has been associated with the claims file.

In an August 2017 rating decision, the Agency of Original Jurisdiction (AOJ) erroneously relayed that, "(e)ntitlement to individual unemployability is moot because your service-connected disabilities are evaluated as 100 percent disabling and no potential entitlement to an earlier effective date for a total disability evaluation based on a grant of individual unemployability is warranted by the evidence of record." In an August 2021 Supplemental State of the Case, the AOJ erroneously relayed the same. 

This case was most recently before the Board in May 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the matters were remanded to obtain updated VA treatment records, to obtain a VA examination to determine the nature and severity of the Veteran's left ankle fracture and to obtain a VA examination to determine the nature and etiology of the Veteran's claimed right ankle or leg disorder.  Updated VA treatment records are located in the record and a June 2021 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain records on his behalf. A VA examination was conducted in August 2021. The Board therefore determines that there has been substantial compliance with its previous remand. The case has now been returned to the Board for appellate action.

Increased Rating  Left Tibia/Fibula Fracture

The Veteran seeks a higher rating for his left tibia/fibula fracture. Specifically, he asserts that his symptoms include limited range of motion to less than half, difficulty balancing, pain with weather changes, popping, and general pain. See Board hearing transcript, November 16, 2020. Additionally, he reported instability in his ankle. Id. 

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered 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 in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

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 evaluation 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 disability. 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. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 

The basis of disability evaluation 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.

The veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995).

The Veteran's left tibia/fibula fracture is rated as noncompensable, under Diagnostic Code 5271. Under Diagnostic Code 5271, a rating of 10 percent is warranted when limitation of motion of the ankle is moderate. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. The maximum rating of 20 percent disabling is available under Diagnostic Code 5271 where the limitation of motion in the ankle is marked. Id.

Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Notably, the terms "moderate" and "marked" were previously not defined under VA regulations. Those terms also did not appear to have a generally accepted medical definition. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). Under the revised diagnostic code, marked limitation of ankle motion constitutes less than five degrees of dorsiflexion or less than 10 degrees of plantar flexion while moderate limitation of ankle motion constitutes less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (effective Feb. 7, 2021).

Also included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate ankle disabilities based on other manifestations, including Diagnostic Code 5270 (ankylosis of the ankle), Diagnostic Code 5272 (ankylosis of the subastragalar or tarsal joint), Diagnostic Code 5273 (malunion of the os calcis or astragalus), and Diagnostic Code 5274 (astragalectomy). 

When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim.

Turning to the evidence, the Veteran was afforded a VA ankle examination in October 2015. At that time, the examiner diagnosed left ankle condition, distal tibia/fibula fracture. The Veteran denied flare-ups of the ankle. He reported functional loss included inability to run, and inability to lift more than his body weight. Upon physical examination, range of motion measurements of the left ankle was all normal (dorsiflexion to 20 degrees, and plantar flexion to 45 degrees). Pain was not noted on examination. There was no objective evidence of localized tenderness or pain on palpation of the joint. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions, and there is no additional loss of function or range of motion after three repetitions. The Veteran was not being examined immediately after repetitive-use over time; the examination was neither medically consistent or inconsistent with the Veteran's statements describing a functional loss with repetitive-use over time. The examiner could not say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repetitive-use over a period of time. There were no additional factors contributing to the disability.

Muscle strength testing at the October 2015 VA examination showed normal muscle strength, without a reduction in muscle strength nor atrophy. There was no ankylosis shown. Joint stability testing was normal. The Veteran did not have or ever had "shin splints," stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), nor ever had a talectomy (astragalectomy). There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran denied the use of any assistive device as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The examiner noted the Veteran's left tibia/fibula fracture impacted his ability to work due to no running, jumping, nor climbing.

At his November 2020 Board hearing, the Veteran testified that his left tibia/fibula fracture symptoms included pain; limited range of motion due to hardware implantation; and instability. 

The Veteran was afforded a VA examination in July 2021. The Veteran reported current symptoms of flare-ups and loss of balance. He also reported that he cannot stand for long and that his weak knees makes standing a struggle. Active range of motion revealed plantar flexion to 45 degrees and dorsiflexion to 20 degrees and passive range of motion was the same. Repetitive motion testing did not reveal any additional loss of motion. There was no evidence of pain, crepitus, muscle atrophy or ankylosis. Joint stability was not found on the anterior drawer test and talar tilt test. The examination noted that the Veteran did not currently have and did not in the past have shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of the calcaneus, talus or talectomy.

The July 2021 VA examiner remarked that it was at least as likely as not that the Veteran would be able to perform a normal eight hour work day. In this regard, the examiner found that light, physical, and sedentary employment was not affected by his left tibia/fibula fracture. 

Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities, to include his left tibia/fibula fracture. However, there is no indication from the treatment notes of record that the Veteran has reported left tibia/fibula symptoms that are worse than those noted in the various VA examination reports of record. 

Based on the foregoing, the Board finds that a 10 percent rating for his left tibia/fibula fracture is warranted. In this regard, the evidence shows that the Veteran's left tibia/fibula fracture manifested in pain, with interference with prolonged walking and/or standing and difficulty carrying weight. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board concludes that the evidence of record is at least evenly balanced to show that the Veteran's left tibia/fibula fracture manifests in pain, without limited range of motion or other functional loss. The Veteran has consistently reported pain that resulted in difficulty with prolonged standing and walking, and difficulty with carrying weight. Therefore, the Board concludes that his left tibia/fibula fracture more closely approximates moderate impairment. 38 C.F.R. §§ 4.40 and 4.45; See also DeLuca v. Brown, supra,

However, the Board finds that the Veteran is not entitled to a rating higher than 10 percent for his left tibia/fibula fracture. In this regard, there is simply no evidence of record to suggest that the Veteran's symptoms were "moderately severe," as to warrant a 20 percent rating as contemplated by the rating criteria prior to the 2021 revisions; nor marked limitation of ankle motion with less than five degrees of dorsiflexion or less than 10 degrees of plantar flexion after February 7, 2021. Specifically, the Veteran was not shown to have objective evidence of pain on physical examination. Rather, his reports of pain are subjective, to include the reports of significant pain that interfered with walking, standing, and carrying weight. Additionally, X-ray results were normal, and functioning was not so diminished that he would be equally well served by amputation with prosthesis. Accordingly, the Board finds that the Veteran's left tibia/fibula fracture manifested, at most, in pain that was moderate such that a 10 percent rating, but not higher, is warranted.

Additionally, the Board has also considered whether a higher or separate rating could be awarded under an alternative diagnostic code for the Veteran's left tibia/fibula fracture. 38 C.F.R. § 4.71a, Diagnostic Codes 5270 through 5274. In this VA examination reports, the examiners found that the Veteran's left tibia/fibula fracture does not exhibit ankylosis; therefore, Diagnostic Code 5270 does not apply. Similarly, the Veteran stated that he did not have, and had never been diagnosed with, either os calcis or astragalus, nor has he ever undergone an astragalectomy. These findings preclude consideration of Diagnostic Codes 5272, 5273, and 5274, respectively. Under 38 C.F.R. § 4.71a, there are no other diagnostic codes available to evaluate disabilities of the left tibia/fibula fracture.

Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp.  See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017).  In this case, the October 2015 VA examination was conducted prior to the Court's holdings in these cases and hence provides only partial information. The August 2021 VA examination measured active and passive range of motion in both the right and left ankles in weight-bearing and nonweight-bearing. The October 2015 and August 2021 VA examinations indicate that the Veteran denied flare-ups. Therefore, the VA examinations are adequate for rating purposes.

The Veteran's belief that he is entitled to a higher rating for his left tibia/fibula fracture is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran's general belief that he is entitled to a higher rating. Moreover, to the extent that the Veteran alleges that he is entitled to a higher rating due to pain and other symptoms reported, the Board notes that such symptoms are contemplated under the current rating assigned. 

The Board acknowledges the Veteran's statements that his left tibia/fibula fracture symptoms are more severe than evaluated, to include difficulty with standing, walking, and carrying weight. The Veteran is competent to report his symptoms and has presented credible statements in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board finds, however, that neither the Veteran's statement nor medical evidence demonstrates that the criteria for an initial rating in excess of 10 percent have been met. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for his left tibia/fibula fracture. However, these records do not address the specific rating criteria necessary to substantiate a higher rating. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. Nevertheless, the Board acknowledges the Veteran's assertions that his left tibia/fibula fracture results in pain, and also feelings of instability, weakness, and fatigability. However, again, the Board notes that such symptoms are contemplated under the current rating assigned. This argument is therefore without merit. 

The Board also acknowledges the Veteran's sincerely held belief that his left tibia/fibula fracture symptoms are more severe than currently contemplated. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology and resulting functional difficulties, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. To this effect, the Board acknowledges the Veteran's argument that his left tibia/fibula fracture has progressed in severity and has been under-compensated. While the Board agrees, the Board simply cannot locate any evidence to support the grant of a higher than already assigned.

The Board has also considered whether a staged rating under Hart, supra, is appropriate for the Veteran's service-connected left tibia/fibula fracture. However, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating for such disorders is not warranted. Further, the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Accordingly, the Board finds that a preponderance of the evidence is for the assignment of a 10 percent for left tibia/fibula fracture, and to that extent only the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

Entitlement to a TDIU prior to March 30, 2017

The Veteran asserts he is entitled to a TDIU. Specifically, the Veteran testified at his Board hearing that his psychiatric symptoms impacted his ability to maintain employment due to symptoms such as paranoia, suspicion, anger, and difficulty being around others. See Board hearing testimony, November 16, 2020. The Veteran testified that he has been unable to maintain a job since leaving active service. Id. Additionally, the Veteran testified that physical symptoms such as gastroesophageal reflux disease (GERD), difficulty holding tools with his hands, losing finger dexterity and strength, dropping tools and parts, and shoulder, back, and neck injuries impact his ability to work. Id. Finally, the Veteran and his attorney seem to assert that the Veteran's psychiatric symptoms, in combination with having appeals with the VA and Social Security Administration (SSA) simultaneously, have made it too difficult to work. Id. 

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall 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). Rating boards should submit to the Director of Compensation 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). See 38 C.F.R. § 4.16(b).

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor).

Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16.

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In the instant case, the Veteran is service connected for posttraumatic stress disorder (PTSD), rated as 30 percent prior to March 30, 2017, and 50 percent thereafter; radiculopathy of the right upper extremity, rated at 20 percent; radiculopathy of the left upper extremity, rated as 20 percent; left knee instability, rated as 10 percent; right knee instability, rated as 10 percent; right knee osteoarthritis, rated as 10 percent; right shoulder strain, rated as 10 percent; left shoulder strain, rated as 10 percent; left hand strain with painful motion of the thumb, rated as 10 percent; right hand strain with painful motion of the thumb, rated as 10 percent; cervical spine strain, rated as 10 percent; lumbosacral strain, rated as 10 percent; right hip strain, rated as 10 percent; radiculopathy of the right lower extremity (sciatic), rated as 10 percent; radiculopathy of the left lower extremity (sciatic), rated as 10 percent; left knee osteoarthritis, rated as 10 percent; radiculopathy of the left lower extremity (femoral), rated as 10 percent; radiculopathy of the right lower extremity (femoral), rated as 10 percent; left hand strain, rated as noncompensable; left tibia/fibula fracture, rated as 10 percent as of the date of this decision; scar of the left tibia/fibula, rated as noncompensable; limitation of extension of the right knee, rated as noncompensable; and limitation of flexion of the right hip, rated as noncompensable. 

The Veteran's combined rating is 90 percent prior to March 30, 2017 and 100 percent thereafter. Thus, the schedular criteria for TDIU have been met for the entire period on appeal. As noted above, the appeal period prior to March 30, 2017 is under consideration for the award of a TDIU.

The record shows that the highest level of education attained by the Veteran is three years of high school. See VA From 21-8940, May 17, 2017. The Veteran attended diesel mechanic school in March 2014, but did not complete because the tools and engines hurt his body and he could not keep up physically. Id. The Veteran reported working in the United States Army as an infantryman from 2005 to 2013, and he last worked in roof sales for 25 hours a week from May 2016 to June 2016. During service, the Veteran's military occupational specialty (MOS) included infantryman. 

The ultimate question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

Turning to the evidence, the Veteran was afforded an August 2015 VA examination for hand and finger conditions. At that time, the examiner noted that his hands impacted his work because gripping was difficult, and the Veteran had locking, pain, and numbness.

The Veteran was afforded an August 2015 VA examination for neck disorders. The examiner noted the Veteran's neck impacted his ability to work due to restricted range of motion and pain. 

The Veteran was afforded August 2015 VA examinations for his back and hips. The examiner noted the Veteran's back and hips did not impact his ability to work. 

The Veteran was afforded an August 2015 VA examination for his shoulder. The examiner noted the Veteran's bilateral shoulder pain impacted his ability to work due to an inability to lift due to exacerbating pain.

The Veteran was afforded an August 2015 VA examination for his knees. The examiner noted the Veteran's left tibia/fibula fracture impacted his ability to work due to difficulty with standing or walking for more than 30 minutes.

The Veteran was afforded an October 2015 VA examination for his ankles. The examiner noted the left tibia/fibula fracture impacted his ability to work due to no running, jumping, or climbing. 

SSA medical treatment records that indicate the Veteran's filed a SSA claim due to his PTSD, neck, back, knees, ankles, and bilateral hands. The SSA determined the Veteran had severe impairment. He reported he worked in manual labor but could no longer work due to PTSD symptoms making it difficult to work around others. Additionally, the Veteran was working on cars, but could no longer perform that work due to a deteriorating physical condition, and inability to write well due to arthritic conditions in his joints. The Veteran indicated he dropped out of the program because he could not use his hands properly. 

A July 2016 psychiatric evaluation performed by Dr. M.S. was submitted At that time, the Veteran reported he was applying for SSA benefits as he could not physically work and had to drop out of school. He reported he could not stand for prolonged periods and had nerve damage in his neck. The Veteran reported he was las employed as a roofing salesman but had to quit because he was not making enough money to pay for the use of his car. He was currently employed by the National Guard, and had to show up only once a month. Dr. M.S. noted the Veteran coped with his psychiatric symptoms with dissociating, and would occasionally express anger to the point of blacking out. 

The Veteran was afforded a VA psychiatric examination in July 2017. At that time, the examiner found the Veteran's PTSD manifested in occupational and social impairment with reduced reliability. In pertinent part, the Veteran had tried several types of employment with his physical limitations, and had recently started doing some lawn mowing on a riding lawnmower. Psychiatric symptoms included a depressed mood, anxiety, suspiciousness and panic attacks that occur weekly or less often. Other symptoms were noted to include chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, a flattened affect, disturbances of motivation and mood and difficulty in adapting to stressful circumstances, including work or a work-like setting. The VA examiner found the Veteran had difficulty attending to or is easily distracted the task at hand, and his sleep was so disrupted that he was usually fatigued at work, making concentration and focus on work assignments difficult. 

The Veteran was afforded a VA examination in July 2017 for his hips. At that time, the examiner noted the Veteran was currently working in the mowing business on a riding mower; had lost two to four weeks of time at work in the last 12 months; and was unable to bend over to pick up items such as tools, or bending over to pull weeds as needed in the mowing business. 

The Veteran was afforded a VA examination in July 2017 for his knees. At that time, the examiner noted his left tibia/fibula impairment impacted his ability to work. In that regard, the examiner noted the Veteran currently worked in the mowing business on a riding lawnmower, and had lost two to four weeks of time at work in the last 12 months; and was unable to walk at a casual pace for more than 30 minutes before needing to sit down. Additionally, the examiner noted the Veteran was unable to kneel as required to work on equipment. 

At a July 2017 VA examination for peripheral neuropathy, the examiner also noted that the Veteran was unable to bend and pick up items as needed. 

At his November 2020 Board hearing, the Veteran testified that the main reason for his unemployability was his psychiatric symptoms. In that regard, the Veteran and his attorney seem to assert that his psychiatric symptoms warrant higher ratings than currently assigned due to symptoms such as anger, paranoia, and suspiciousness. Additionally, the Veteran testified that his physical injuries impacted his ability to work due to symptoms of neck pain, back pain, knee pain, inability to grip or hold tools, and difficulty with fingering and dexterity. Moreover, the Veteran and his attorney indicated that he currently had appeals pending with the SSA for benefits, and that he did not have the bandwidth to fight for both appeals with VA and SSA and work due to his psychiatric symptoms. 

The Veteran was afforded a VA examination in August 2021 for his left tibia/fibula fracture. At that time, the examiner noted that it was at least as likely as not that the Veteran was able to perform a normal eight hour work day; light, physical, and sedentary employment was not affected by his service-connected conditions. 

Based on the foregoing, and in consideration of the pertinent medical findings, including his reports at the various VA examinations of record and during treatment at VA medical centers, where he indicated his barriers to employment included problems getting along with others, pain and mobility issues in his hands, knees, back, neck and shoulders, anger, and difficulty with focus and/or concentration, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service connected disabilities for the appeal period prior to March 30, 2017.

In this regard, as discussed in the preceding section, the Veteran's PTSD has been found to result in occupational and social impairment with reduced reliability. The July 2017 VA examiner found the Veteran had difficulty attending to or is easily distracted the task at hand and his sleep was so disrupted that he was usually fatigued at work, making concentration and focus on work assignments difficult. Additionally, the Veteran's physical limitations as a result of his service-connected disabilities impacted his ability to work due to difficulty with bending, walking prolonged periods, picking up tools and/or items. To the extent that the Veteran was briefly able to maintain employment in roof sales and mowing lawns, there is no evidence that such was gainful employment.

The Board again notes that the Veteran is in receipt of a combined 100 percent schedular rating beginning on March 30, 2017. As a 100 percent combined rating constitutes a higher benefit than a TDIU, entitlement to a TDIU is rendered moot from March 30,2 2017. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where a 100 percent schedular rating was awarded for the same period).

However, a grant of a 100 percent rating does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). A veteran meets the statutory requirements for payment of special monthly compensation at the housebound rate when he or she has a single service-connected disability rated at 100 percent, and other service-connected disability (or disabilities) separate and distinct from the disability rated at 100 percent, which are rated at a combined rating of 60 percent or higher. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A TDIU can qualify as a single disability for purposes of special monthly compensation at the housebound rate, but only if the TDIU is based on a single disability. See Bradley, 22 Vet. App. at 293. Here, there is no evidence or allegation that the Veteran was unable to obtain and maintain employment due to a specific service connected disability rather than the combined effects of his service connected disabilities. Therefore, the issue of entitlement to a TDIU beginning on March 30, 2017 is moot.

Therefore, based on the foregoing, the Board finds that the Veteran's service-connected disabilities do render him unable to secure and follow a substantially gainful occupation and entitlement to a TDIU is warranted as of March 30, 2017.  To that extent, the appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

Service Connection  Right Ankle Disorder

The Veteran seeks service connection for a right ankle/leg disorder, to include as secondary to his service-connected left tibia/fibula fracture. Specifically, the Veteran testified that he overcompensated and damaged his right ankle/leg, due to the severity of his left tibia/fibula fracture. See Board hearing testimony, November 16, 2020. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.307, 3.309. 

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b).

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability").

In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. 

Turning to the evidence, service treatment records are unremarkable for complaints of, treatment for, or diagnoses of any condition related to the Veteran's right ankle. Notably, the Veteran's service treatment records show an injury and treatment for his left ankle but are silent with regard to his right ankle. All physical examinations, to include post-deployment and separation examinations are normal with respect to his right ankle. 

The Veteran was afforded a VA examination in October 2015. At that time, the examiner found the Veteran's right ankle was normal in all respects and there was no diagnosis rendered as to the right ankle. The Veteran reported an onset of gradual right ankle pain without trauma. Pain was not shown on physical examination of the right ankle. 

At his November 2020 Board hearing, the Veteran testified that he injured his left ankle in a crush injury during a motor vehicle accident while he was on leave. He reported he had surgery and had hardware placed in his left ankle, and as a result, he overcompensated and overused his right ankle resulted in a right ankle disorder. 

The Veteran was afforded a VA examination in July 2021 for his right ankle. At that time, the examiner found that there was no current diagnosis as to the right ankle. The Veteran reported current symptoms of flare-ups, imbalance, difficulty walking, weakened knees and correcting in the left leg, and problems with his right hip. The Veteran denied any functional loss or functional impairment of the ankle. Physical examination with respect to the right ankle was within normal limits. Thus, the VA examiner opined that the Veteran's claimed right ankle disorder was less likely than not incurred in or caused by an in-service injury, event, or illness because there was no diagnosed right ankle disability. Additionally, the VA examiner opined that the Veteran's claimed right ankle disorder was less likely than not proximately due to or the result of the Veteran's service-connected left tibia/fibula fracture because there was no diagnosed right ankle disability. 

In the instant case, the probative evidence of record fails to demonstrate a current diagnosis of a right ankle disorder at any time during the appeal period, and there is no probative evidence of recent diagnosis of such disorder prior to the Veteran's claim. McClain v. Nicholson, supra; Romanowsky v. Shinseki, supra. 

The Board has considered the evidence in light of the case of Saunders v. Wilkie in which the United States Court of Appeals for the Federal Circuit addressed "the legal issue [of] whether pain without an accompanying pathology can constitute a "disability" under [38 U.S.C.] § 1110." 886 F.3d 1356, 1363-64 (Fed. Cir. 2018). The Federal Circuit held that the Veterans Court erred "as a matter of law in holding that pain alone, without an accompanying diagnosis or identifiable condition, cannot constitute a 'disability' under [38 U.S.C.] § 1131, because pain in the absence of a presently-diagnosed condition can cause functional impairment." The Federal Circuit "conclude[d] that pain is an impairment because it diminishes the body's ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Further, the Federal Circuit held that "[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that pain reaches the level of a functional impairment of earning capacity." 

In this case, there is no credible persuasive evidence or allegation that the Veteran suffered from a separately diagnosed right ankle disorder that was productive of functional impairment. To that end, the record contains no evidence or allegation that the Veteran experienced functional impairment associated with his right ankle. Notably, at his July 2021 VA examination, the Veteran reported he did not experience any functional loss or functional impairment due to his right ankle. In addition, the record does not reflect, and the Veteran did not allege, that he suffered from impairment of earning capacity due to his claimed right ankle disorder that is of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8 (2020).

The Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). 

However, the matter of a medical diagnosis for a disability not capable of lay observation, such as that of arthritis or other joint impairment, is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). In the instant case, there is no suggestion that the Veteran has developed an expertise in the diagnosis of a right ankle disorder. Therefore, as they do not have the appropriate medical training and expertise to competently diagnose chronic fatigue syndrome, the lay assertions in this regard have no probative value. Jandreau, supra at 1377 n.4 ("[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Woehlaert v. Nicholson, supra. 

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131. Thus, where, as here, the probative evidence indicates that the Veteran does not have current diagnosis of chronic fatigue syndrome for the entire appeal period, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

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In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a right ankle disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mariah N. Sim, 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.