Citation Nr: 21070502
Decision Date: 11/24/21	Archive Date: 11/24/21

DOCKET NO. 16-41 857A
DATE:   November 24, 2021

ORDER

Entitlement to a rating in excess of 20 percent for status post-surgery of left chronic achilles tendonitis, exclusive of periods of a temporary total rating, is denied. 

Entitlement to a rating in excess of 20 percent for left ankle nerve entrapment, exclusive of periods of a temporary total rating, is denied.

FINDINGS OF FACT

1. For the entire period on appeal, exclusive of periods of a temporary total rating, the Veteran is assigned a 20 percent rating for his status post-surgery of left chronic achilles tendonitis, which is the maximum rating under the VA rating schedule. 

2. For the entire period on appeal, exclusive of periods of a temporary total rating, the Veteran's left ankle nerve entrapment was manifested by symptoms comparable to, at worst, moderate incomplete paralysis and without symptoms comparable to severe incomplete paralysis to include muscle atrophy or lost or diminished reflexes.

CONCLUSIONS OF LAW

1. There is no legal basis for the assignment of a schedular rating in excess of 20 percent for status post-surgery of left chronic achilles tendonitis for periods on appeal exclusive of period of a temporary total rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Code 5271.

2. The criteria for entitlement to a rating in excess of 20 percent for left ankle nerve entrapment, for all periods on appeal exclusive of periods of a temporary total rating, have not been met. 38 U.S.C. §§ 1155, 5107; 328 C.F.R. §§ 3.102, 4.14.14, 4.68, 4.123, 4.124a, Diagnostic Code 8521.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 2004 to January 2006. 

These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Oakland, California.  

The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge of the Board in February 2021. A transcript of the hearing has been associated with the claims file.

This case was most recently before the Board in April 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, these matters were remanded to obtain updated VA treatment records and to conduct a VA examination to determine the severity of the Veteran's status post-surgery of left chronic achilles tendonitis and left ankle nerve entrapment.  Updated VA treatment records have been associated with the record and an April 2021 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain identified treatment records. A VA examination was conducted in July 2021. The Board therefore finds that there has been substantial compliance with its previous remand. The case has now been returned to the Board for appellate action.

Increased Rating

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).

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 claims.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").]

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).

1. Status Post-Surgery of Left Chronic Achilles Tendonitis

The Veteran asserts that he is entitled to a higher rating for status post-surgery of left chronic achilles tendonitis because his symptoms are more severe than contemplated by the currently assigned rating. Specifically, the Veteran asserts that he had worsening symptoms that resulted in difficulty functioning at home and work, limping, significant physical impairments, difficulty navigating stairs, and impairment with his ability to work. See e.g. VA Form 21-4138 Statement in Support of Claim, May 17, 2017; see also Board hearing transcript, February 2, 2021. Additionally, the Veteran asserts that he could not move his toes and feet in an upward and downward position, severe pain, and swelling. See VA Form 9, August 8, 2016. 

The Veteran has been assigned a 20 percent rating for all periods on appeal, exclusive of periods of a temporary total rating, under Diagnostic Code 5271. See 38 C.F.R. § 4.71a, 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. 

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). In the instant case, Diagnostic Code 5271 was amended, and there is relevant evidence associated with the claims file after February 7, 2021. However, the maximum schedular rating remains 20 percent under both the old and new diagnostic codes. The appropriate criteria is discussed below. 

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" are not defined under VA regulations. Those terms also do 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.

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).

As noted above, Diagnostic Code 5271 provides a maximum rating of 20 percent for an ankle disability, under the old and revised criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. As there is no adequate legal basis upon which to award a rating in excess of 20 percent for status post-surgery of left chronic achilles tendonitis, the Veteran's claim for a higher schedular rating must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 

The Board has also considered whether a higher or separate rating is warranted under alternative diagnostic codes. The examinations also stated that there was no ankylosis of the left ankle. The Veteran's examinations have been consistently negative for ankylosis and the Veteran has retained range of motion in the left ankle. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Although the Veteran testified during his Board hearing that he had zero degrees of range of motion upwards and downwards with some range of motion laterally, a July 2021 VA examination found five degrees of plantar flexion and dorsiflexion on objective examination. Therefore, a higher or separate rating under diagnostic code 5270, 5272, 5273 and 5274 is not warranted.

Finally, the Veteran seems to assert that his most recent July 2021 VA examination report is inadequate because the examiner failed to adequately address his pain level, limited motion, and did not perform repetitive-use testing. See VA Form 21-4138 Statement in Support of Claim, September 27, 2021. Specifically, he asserts that the examiner did not report the Veteran's severe pain that disturbed sleep, and his reported limited extension and flexion. Id. However, as detailed above, the Veteran is already in receipt of the highest schedular rating for an ankle condition based upon limitation of motion and a higher rating would require ankylosis. The September 2021 VA examination report clearly indicates that the Veteran retains range of motion. This argument is therefore without merit.

The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for status post-surgery of left chronic achilles tendonitis. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

2. Left Ankle Nerve Entrapment

The Veteran asserts that he is entitled to a higher rating for his left ankle nerve entrapment because his symptoms are more severe than contemplated by the currently assigned ratings. Specifically, the Veteran asserts that the surgery for his left ankle has manifested in residuals that affect him at work and in his personal life. See Notice of Disagreement, September 12, 2013. Additionally, the Veteran asserts that he could not move his toes and feet in an upward and downward position, severe pain, and swelling. See VA Form 9, August 8, 2016. 

The Veteran's left ankle nerve entrapment has been assigned a 20 percent rating for all periods on appeal, exclusive of periods of a temporary total rating, under Diagnostic Code 8521. Under this Diagnostic Code, a 20 percent rating is assigned for moderate incomplete paralysis and a 30 percent rating is assigned for severe incomplete paralysis. See 38 C.F.R. § 4.124a, Diagnostic Code 8521. Comparatively, a 40 percent rating is assigned for complete paralysis manifested by: foot drop and slight drop of the first phalanges of all toes, the inability to dorsiflex the foot, and lost extension (dorsal flexion) of proximal phalanges of toes; lost abduction of the foot, weakened adduction; anesthesia covering the entire dorsum of the foot and toes. Id. 

In rating peripheral nerve disability, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than that for complete paralysis. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a.

The Board observes that the words "mild," "moderate," and "severe" as used in the various codes are not defined in the VA Schedule for Rating Disabilities. 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.

Turning to the evidence, the Veteran was afforded a VA examination in April 2015. At that time, the Veteran reported his left ankle symptoms had increased, and he reported pain, numbness, swelling, difficulty with navigating stairs, limping, and physical impairments and limitations with running, jumping, and sports. The Veteran reported he was unable to put pressure on his left ankle and his daily ankle pain was an 8 or 9 out of 10 pain intensity. He denied any alleviating factors. Symptoms attributable to his left ankle nerve entrapment included moderate constant pain, paresthesias and/or dysesthesias, and numbness. Muscle strength testing showed active movement against some resistance in ankle plantar flexion and dorsiflexion; the Veteran did not have muscle atrophy. Sensory examination showed absent sensation testing for light touch in the lower left ankle and foot/toes. There were no trophic changes shown. The Veteran's gait was limping due to his left ankle and foot. The examiner evaluated the Veteran's left ankle nerve entrapment was manifested with mild incomplete paralysis of the sciatic, external popliteal, anterior tibial, internal popliteal, and posterior tibial nerves. The Veteran endorsed the occasional use of a cane 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 ankle nerve entrapment impacted his ability to work, and the Veteran could perform light physical and sedentary activities. 

The Veteran was afforded a VA examination in March 2018. At that time, the Veteran reported pain with walking, decreased movement in his toes, shooting pain, limitation with walking, and unbearable pain during sleep. The Veteran reported working in a sedentary position. Symptoms attributable to his left ankle nerve entrapment included moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity. Muscle strength testing showed active movement against gravity in left ankle plantar flexion and ankle dorsiflexion; the Veteran did not have muscle atrophy.  Deep tendon reflex testing showed absent reflexes in the left ankle. Sensory examination showed decreased sensation testing for light touch in the left lower leg/ankle and foot/toes. There were no trophic changes shown. The Veteran had an abnormal gait. The examiner evaluated the Veteran's left ankle nerve entrapment was manifested with moderate incomplete paralysis of the external popliteal nerve. The Veteran endorsed the regular use of a brace and scooter as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The examiner noted the Veteran's left ankle nerve entrapment impacted his ability to work due to limited walking, using a "standing desk", ice for pain relief, and using a walker and knee scooter to assist with ambulation. 

The Veteran was afforded a VA examination in June 2019. At that time, in pertinent part, the Veteran reported difficulty walking long distance, moving his foot, putting on shoes, wearing certain types of shoes, and balance; inability to run, job, standing without cane, walking without cane, household chores, and yard work. 

At his February 2021 Board hearing, the Veteran testified that he experienced a lot of pain when walking which required him to walk gently on his foot, constant swelling, twitching and curling toes that requiring soaking feet. He testified that his flare-ups that were constant and daily, that he experienced spasms when wearing shoes, that he had sleep disturbances due to pain and had difficulty walking long distances. He testified that he used a cane for walking assistance and that he had difficulty running and performing basic household chores. He testified that he was unable to play sports, that he had multiple surgeries and that he would see improvement following surgery but eventually his symptoms would worsen. He testified he had zero degrees of range of motion upwards and downwards with some range of motion laterally. He testified that he had constant swelling that limited him to wearing tennis shoes, numbness, tingling, toe curling, tingling, and severe nerve damage. The Veteran testified he would miss work due to treatments, symptoms, and surgeries required for his left ankle. He testified that his left foot was weaker than his right foot, burning pain, constant pain, and required taking medications for treatment. 

The Veteran was afforded a VA examination in July 2021. At that time, he reported spasm and tingling. Symptoms attributable to his left ankle nerve entrapment included moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness of the left lower extremity. Muscle strength testing was normal; the Veteran did not have muscle atrophy. Reflex examination was normal. Sensory examination showed decreased sensation testing for light touch in the left lower leg/ankle and foot/toes. There were no trophic changes shown. The Veteran's gait was antalgic. The examiner evaluated the Veteran's left ankle nerve entrapment was manifested with mild incomplete paralysis of the posterior tibial nerve. The Veteran endorsed the constant use of a left sided cane as a normal mode of locomotion. The examiner noted the Veteran's left ankle nerve entrapment impacted his ability to work due to impaired ability to walk on any terrain. 

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

For the foregoing reasons, the Board finds that a rating in excess of 20 percent for all periods exclusive of periods of a temporary total rating for left ankle nerve entrapment is not warranted. In this regard, the Board notes that the Veteran's left ankle nerve entrapment has consistently been shown to be manifested by, at worst, moderate incomplete paralysis. See VA examination report, March 28, 2018. Specifically, at his March 2018 VA examination, the Veteran was shown to have moderate incomplete paralysis of the external popliteal nerve, and symptoms of moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity. The Veteran has consistently reported severe pain, interference with physical activities such as walking, running, and sports, and difficulty navigating stairs, and severe pain. However, even in consideration of the Veteran's reports and lay statements regarding the severity of his left ankle symptoms, the Veteran has not been shown to have severe incomplete paralysis at any time. Notably, the Veteran himself indicated his symptoms would improve temporarily following surgery, and would eventually worsen; the July 2021 VA examination report confirms the Veteran's reports and showed his left ankle nerve entrapment was manifested with mild incomplete paralysis of the posterior tibial nerve. Here, the evidence simply does not show that the Veteran's left ankle nerve entrapment was manifested with severe incomplete paralysis. The record does not establish, and the Veteran muscle atrophy or loss or diminished reflexes. Accordingly, a rating in excess of 20 percent for all periods exclusive of periods of a temporary total rating for left ankle nerve entrapment is not warranted. 

Moreover, the "amputation rule" provides that the combined rating for disabilities of an extremity cannot exceed the rating for amputation at the elective level. 38 C.F.R. § 4.68. A 40 percent rating is assigned if there was an amputation of the lower extremity below the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5165. 

In addition to the 20 percent rating assigned for limitation of motion and the 20 percent rating assigned for nerve entrapment, the Veteran has been assigned separate ratings for several scars on the ankle for the entire appeal period. The combined rating for left ankle, when the ratings for limitation of motion and scars are considered together, is 40 percent or greater. Thus, considering the amputation rule, even if they were applicable, assigning separate or higher ratings under additional Diagnostic Codes applicable to the ankle would be impermissible.

In addition, the Board has also considered the applicability of other diagnostic codes to provide the appellant with the most beneficial disability rating. In this regard, paralysis of the external popliteal nerve is specifically contemplated by the Rating Schedule. Therefore, the Board finds that no other diagnostic code or rating would be appropriate in the evaluation of the Veteran's disability. See Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015) (holding that when a diagnosed condition is specifically listed in the Rating Schedule, rating by analogy is inappropriate).

The Board acknowledges the Veteran's statement that his left ankle nerve entrapment is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. See, e.g., Layno v. Brown, supra and Grottveit v. Brown, supra. The Board finds, however, that neither the Veteran's statements nor medical evidence demonstrates that the criteria for a higher initial rating have been met. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for his left ankle, to include several surgical interventions. However, these records do not address the specific rating criteria necessary to substantiate a higher rating. Nevertheless, the Board acknowledges the Veteran's statements that his left ankle symptoms warrant a higher rating based on symptoms such as disrupted sleep, severe pain, limited range of motion, inability to move his foot up and down, difficulty navigating stairs, inability to walk long distances, interference and missing work, tingling, burning, constant pain, severe flare-up pain and interference with basic household chores. However, the Board finds that 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, supra. 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. These arguments are therefore without merit. 

Additionally, the Board also considers the Veteran's assertions that the VA examination reports are inadequate for rating purposes. Specifically, the Veteran indicates that the examiner failed to adequately address his lay statements regarding pain, interference with his daily activities, and did not conduct range of motion measurement testing. However, the Board notes that the VA examination reports of record associated with the claims file indicate the VA examiner noted the Veteran's lay statements regarding his symptoms, performed range of motion measurement testing, and took into consideration all evidence presented when determining the level of severity of the Veteran's left ankle nerve entrapment. There is no indication from the record of any irregularity in the reports, examinations, nor does the Veteran provide any elaboration or explanation as to such. Rather, he merely states the VA examiner did not perform the testing shown in the report. This argument is therefore without merit. 

The Board has also considered whether a staged rating under Hart, supra, is appropriate for the Veteran's service-connected left ankle nerve entrapment; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating for such disability 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, supra.

Additionally, the Board has considered whether an inferred claim for a TDIU has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran reported being employed at VA in a May 2021 VA treatment note. The Veteran has also not alleged, and the record does not suggest, that he is unable to obtain and maintain employment due solely to his service connected left ankle nerve entrapment. As such, a Rice claim is not raised.

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for all periods on appeal, exclusive of periods of temporary total rating, for left ankle nerve entrapment, and to that extent the claim is denied. 38 U.S.C. § 5107(b); 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.