Citation Nr: 21070727 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 09-03 399A DATE: November 24, 2021 ORDER Entitlement to a rating in excess of 40 percent for residuals of right ankle fracture is denied. Entitlement to a total disability rating due to unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's right ankle disability is characterized by ankylosis with inversion deformity, pain, swelling and severe limitation of motion and has been assigned the maximum schedular rating. 2. The Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for residuals of right ankle fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5270 (2021). 2. The criteria for a total disability rating due to unemployability have been met. 38 U.S.C. § 1155, 5103, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to April 1972. This matter came before the Board of Veterans Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has a lengthy procedural history. Most recently, the Veteran testified before the undersigned Veteran's Law Judge during a June 2017 hearing. The transcript of the hearing is of record. December 2017, April 2019, October 2020 and June 2021 Board decisions then remanded the issues on appeal. A January 2021 rating decision increased the rating for the right ankle from 20 to 40 percent effective May 23, 2007, which the Board notes is the entire period on appeal. Because the Veteran is presumed to seek the maximum available benefit, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 40 percent for residuals of right ankle fracture The Veteran contends that he is entitled to an increased rating for his right ankle disability. For the reasons that follow, the Board concludes that a rating in excess of 40 percent is not warranted. The Veteran's right ankle is rated at 40 percent under Diagnostic Code (DC) 5270, which rates ankylosis of the ankle, for the entire period on appeal. The DC provides a maximum schedular rating of 40 percent for ankylosis in plantar flexion at more than 40°, or in dorsiflexion at more than 10° or with abduction, adduction, inversion, or eversion deformity. This is the highest rating available under the DC. The record clearly shows that the Veteran has right ankle ankylosis with inversion deformity. At the June 2017 Board hearing, the Veteran reported that his ankle is essentially frozen in one position and he always walks with a cane. Consistent with the Veteran's reports, the January 2021 VA examination found ankylosis of the right ankle in 10 degrees of inversion and severely limited mobility. The Board acknowledges October 2021 post-remand brief argument that the Veteran's symptoms are more severe than contemplated by the 40 percent rating. However, in this case the Board is precluded by regulation from assigning the Veteran a rating higher than 40 percent or any further separate ratings due to residual weakness, pain, limitation of motion, instability, or flare-ups. Under the amputation rule, 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. § 4.71a, DCs 5165, 5166. Because the Veteran's disability is in the ankle, the amputation rule precludes an evaluation in excess of 40 percent. 38 C.F.R. §§ 4.68, 4.71a, DCs 5165, 5166, 5270. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. Additionally, to the extent that the Veteran contends that the rating criteria does not account for functional effects of his right ankle, the Board finds that the Veteran's symptoms are encompassed by the 40 percent rating already assigned. Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe the disability level and symptomatology shown. If the schedular rating criteria reasonably describe the disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Here, the 40 percent rating already assigned specifically contemplates the Veteran's disability picture of ankylosis with inversion deformity. His related impairments of pain and limited motion are encompassed by the regular schedular criteria. Thus, as the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is adequate and referral for extraschedular consideration is not required under 38 C.F.R. § 3.321 (b)(1). 2. Entitlement to a total disability rating due to unemployability (TDIU) TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 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 U.S.C. § 1155; 38 C.F.R. § 4.16(a). As the Veteran has one disability rated at 40 percent and a combined rating of 80 percent, the schedular threshold is met. The Board will therefore consider whether the Veteran's service-connected disabilities render him unable to secure and maintain substantially gainful employment. This involves consideration of two components: an economic component involving an occupation outside of a protected environment earning more than marginal income, and a non-economic component involving the Veteran's ability to secure and follow such employment. See Ray v. Wilkie, 31 Vet. App. 58 (2019). VA may consider the Veteran's level of education, special training, and previous work experience in making this determination, but may not consider age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. (1991). Medical evidence describing the effect of each disability on the Veteran's occupational functioning is crucial to permit the Board to arrive at an assessment of employability. 38 C.F.R. § 4.1. However, the determination of whether service-connected disabilities are of sufficient severity to produce unemployability is ultimately the Board's to make. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 C.F.R. § 4.16 (a) as support for the conclusion that the applicable statutory and regulatory provisions "place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Therefore, the Board will review the medical evidence in the context of the other evidence of record prior to reaching a conclusion regarding employability. The Veteran submitted a November 2013 VA 21-8940, application for increased compensation based on unemployability. He reported that he last worked full time in February 20009 and his work history consisted of nearly 30 years as a postal deliveryman. He reported that he had a high school education and no additional training or education. A March 2018 VA examination found the Veteran was unable to stand or walk for more than 15 minutes due to his right ankle disability. The examiner opined that the Veteran could do work where he could sit with his leg elevated, such as at a desk checking IDs. A January 2021 VA examination found that ankylosis of the right ankle with inversion deformity resulted in severely limited mobility and problems with prolonged walking, standing and stairs. The provider noted ankle swelling once or twice per week with increased pain and stiffness that made the Veteran unable to get out of bed as well as problems driving due to an inability to push the pedals. A May 2021 VA examination found that the Veteran's anxiety disorder caused problems with work/social relationships and difficulty adapting to stress, including in a work setting, and specifically noted problems getting along with coworkers. The examiner also found impaired impulse control. A June 2021 VA opinion found functional impairments due to anxiety disorder. The provider found that while the Veteran was able to communicate, remember and follow instructions, he was less able to develop relationships at work and adapt to changes or stress-related demands. The provider opined that as a result, he was less able to work in public and would need to work in an enclosed space or a cubicle with little interaction with the public and typically working alone. The Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the June 2017 Board hearing, the Veteran testified that he had to use a cane to walk and walked on his right heel as the bottom of his foot and toes did not touch the ground. He reported working for UPS for years, but that his ankle got worse to the point where he could no longer drive making him unable to perform his job requirements and also making him unable to get to work by himself. He also said that he had trouble having to get up and down frequently. The Board notes that the Veteran is competent to report lay-observable impairments such as trouble walking, driving, and getting up from a seated position and assigns his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon review of the above, the Board finds that the Veteran is unable to sustain or maintain non-marginal employment due to his service connected disabilities. First, he is precluded from physical employment due to his ankle disability, which prevents extended walking or standing. The Board notes that the Veteran' work history consists entirely of physical work as a deliveryman, which requires the ability to walk, stand and carry weight and would thus be precluded by his ankle disability. The Veteran would also be precluded from any other work involving driving. The Board also finds that the Veteran would be precluded from sedentary work. In so finding, the Board notes that sedentary employment is the common meaning in society of non-physical, white collar, office-type work. First, the Veteran has a high school education and a history of exclusively physical employment, which would limit his ability to obtain skilled sedentary employment. While the March 2018 VA examiner noted that sedentary, low-skilled labor such as sitting and taking tickets would not be precluded by the Veteran's ankle disability alone, such employment would be impacted by the Veteran's additional impairments from his psychiatric disability, particularly his difficulty working in public settings. Given the need to elevate his foot when sitting noted by the March 2018 VA examiner and the May 2021 and June 2021 examiner's findings that the Veteran would need to work alone and in an enclosed space with little public contact, as well as the Veteran's competent reports of ankle swelling making him unable to get out of bed once or twice per week, the Board finds that the Veteran is precluded from obtaining and maintaining non-marginal employment. The preponderance of the evidence therefore indicates that the Veteran's service-connected disabilities render him unable to secure and maintain substantial gainful employment. TDIU is therefore warranted under 38 C.F.R. § 4.16(a). E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.