Citation Nr: 21067997 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 19-28 769 DATE: November 8, 2021 ORDER Entitlement to an increased rating in excess of 40 percent for a right ankle disability is denied. REMANDED Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Service connection is in effect for right ankle, rated as 40 percent disabling from November 3, 2014, which is the maximum schedular rating for ankle ankylosis. CONCLUSION OF LAW The criteria for an increased rating in excess of 40 percent for a right ankle disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5270. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1964 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision. In March 2021, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. The Board remanded the case in July 2021 for additional development. It has since been returned to the Board for further appellate review. By way of background, the Veteran was granted service connection for a right ankle disability with a noncompensable rating from June 15, 1995. He filed for an increased rating, and in a January 2015 rating decision, his rating was increased to 40 percent, effective November 3, 2014. The Veteran subsequently filed another claim for an increased rating for his service-connected right ankle disability in June 2016, which was denied by the agency of original jurisdiction (AOJ) in the above-referenced October 2016 rating decision. The Veteran disagreed, and perfected this appeal. Increased Rating Entitlement to an increased rating in excess of 40 percent for a right ankle disability is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). 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 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, to 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. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, these provisions are not for consideration where the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Throughout the period under review, the Veteran's right ankle disability has been rated 40 percent disabling under Diagnostic Code (DC) 5270. The Board notes that a 40 percent rating is the maximum schedular rating for ankylosis of the ankle under Diagnostic Code 5270. 38 C.F.R. § 4.71a. DC 5270 pertains to ankylosis of the ankle and provides for a 20 percent rating where there is ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted where there is ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between zero and 10 degrees. A 40 percent rating is warranted where there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. The Board has considered the results of VA examinations of the Veteran's right ankle that took place in September 2016, January 2017 and most recently, in August 2021, as well as the Veteran's records of ongoing care. While these examinations and assessments revealed limitation of motion, painful motion and limitations of mobility, they do not reflect the presence of symptoms not otherwise contemplated by the 40 percent rating currently in effect. Indeed, although the Veteran described potentially worsening pain symptoms at his March 2021 hearing before the Board, a subsequent August 2021 examination revealed that the Veteran had both active range of motion and passive range of motion dorsiflexion and plantar flexion of 15 degrees, with the presence of ankle pain. Estimated range of motion immediately after repeated use over time was also to 15 degrees with both dorsiflexion and plantar flexion. Pertinently, the Veteran's right ankle was not found to be ankylosed during this examination. Although the Board recognizes the Veteran's complaints of flare-ups, and acknowledges that the August 2021 examiner did not estimate range of motion loss during a flare, the Board notes that even if it assumes that flare-ups are so severe as to manifest in the functional equivalent of ankylosis in the most unfavorable position, such is contemplated by the 40 percent rating currently in effect for ankylosis, and a higher rating is unavailable. The Board has considered application of the other ankle Diagnostic Codes specific to limitation of motion of the ankle (Diagnostic Code 5271), ankylosis of the subastragalar or tarsal joint (Diagnostic Code 5272), malunion of the os calcis or astragalus (Diagnostic Code 5273), or for astragalectomy (Diagnostic Code 5274), but these codes would not avail the Veteran as the maximum rating under each of these codes is only 20 percent. In light of the above, as the highest rating has already been awarded, the Board concludes that the Veteran is not entitled to a higher schedular rating for his service-connected right ankle. A 40 percent rating is the maximum schedular rating under Diagnostic Code 5270. The Board adds that the "amputation rule" precludes the Board from assigning the Veteran a rating higher than 40 percent or any further separate ratings for the right ankle. The "amputation rule" provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. 38 C.F.R. § 4.68. A 40 percent rating is the maximum rating provided for an amputation below the knee. See 38 C.F.R. § 4.71, Diagnostic Codes 5165, 5166. Because the Veteran's disability is in the ankle, the amputation rule would preclude a rating in excess of 40 percent. Accordingly, the benefit sought on appeal must be denied. The Board acknowledges that in an October 2021 Appellate Brief, the Veteran's representative asked the Board to remand the issue of entitlement to service-connection for diverticulitis for further development, and to reinstate the Veteran's service connection award for a left ankle disability. The Board does not have jurisdiction over these issues; however, the Veteran is invited to file a new service-connection claim for the diverticulitis disability on a form prescribed by the Secretary. To the extent that the Veteran has any disagreements with the severance of service connection for the left ankle, he is invited to exercise additional review options as outlined in the September 2021 rating decision notice letter accompanying that decision. REASONS FOR REMAND Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Under Rice v. Shinseki, the Board has jurisdiction over a TDIU claim as part and parcel of the Veteran's increased rating claim currently before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). The Board finds that TDIU has been reasonably raised by the record and accepts jurisdiction of the issue. This issue has not been addressed by the AOJ in the first instance. On remand, the Veteran should be provided appropriate notice of what is required to substantiate a claim for TDIU, and invited to submit VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The matter is REMANDED for the following action: 1. Provide the Veteran with VA Form 21-8940 and appropriate notice about the evidence needed to establish entitlement to a TDIU. Request that he provide VA with his employment and income history. (Continued on Next Page) 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.