Citation Nr: 21072705 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-67 628 DATE: December 6, 2021 ORDER An initial rating of 20 percent for orthopedic impairment of the left ankle is granted. REMANDED Entitlement to a separate rating for neurological impairment stemming from the Veteran's service-connected left ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's left ankle disability more nearly approximates marked limitation of motion. CONCLUSION OF LAW Throughout the appeal period, the criteria for an initial rating of 20 percent for a left ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1984 to May 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2021 virtual hearing. At the hearing, the Veteran raised a claim of TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Such is not a separate claim, but a part of the claim on appeal. Increased Rating Entitlement to an initial rating in excess of 10 percent for a left ankle disability. The Veteran's right ankle disability is rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5271, which provides a 10 percent rating based on moderate limitation of motion, and a 20 percent rating based on marked limitation of motion. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran was afforded VA examinations for the ankle in December 2016 and March 2018, and a foot examination in January 2021 that partially addressed the Veteran's left ankle. Notably, neither VA examination for the ankle is wholly adequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158, 166 (2016). However, parts of both examination reports are relevant and provide useful information to assist in adjudication of this appeal. After a review of the evidence of record, the Board finds that the preponderance of the evidence supports a finding the Veteran's left ankle disability warrants a rating of 20 percent for marked limitation of motion under Diagnostic Code 5271. In this regard, the Board notes that the 2018 VA examination indicates the Veteran complained of instability and joint stability testing for the left ankle was positive. The March 2016 VA examination noted the Veteran's occasional use of a brace and cane for left ankle support. Additionally, private treatment records show the Veteran received physical therapy for his left ankle due to chronic pain, instability, altered gait, stiffness, swelling, and frequent rolling sensations. See January 2018, Private treatment record. During both VA examinations, the Veteran complained that prolonged walking and standing exacerbate his left ankle disability. At the October 2021 hearing, the Veteran testified that he wears a left ankle brace for stability. The Board finds the Veteran is competent to report his symptoms during the appeal period, and the Board finds he is credible in reporting the severity of his symptomatology as such is consistent with the treatment records and examinations during the appeal period. Resolving any reasonable doubt in favor of the Veteran, based on the Veteran's documented limitation of motion, instability, and reported flare-ups, the Veteran's service-connected left ankle disability more nearly approximates marked limitation. Thus, a 20 percent rating throughout the appeal period for marked limitation of motion is warranted for his left ankle disability. At the October 2021 hearing, the Veteran testified that a grant of 20 percent would satisfy his appeal with respect to limitation of motion of his left ankle disability. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the Board finds that this grant represents a complete grant of the benefit sought on appeal concerning limitation of motion of the left ankle, and additional discussion of whether the Veteran meets the criteria for a higher schedular rating for his disability is not warranted. REASONS FOR REMAND 1. Entitlement to a separate compensable rating for left ankle neurological impairment is remanded. At the October 2021 hearing, the Veteran testified that his left ankle disability is manifested by loss of sensation in his left lower extremity. The Veteran has not been afforded a neurological examination in connection with this left ankle disability. Therefore, the Board finds that a contemporaneous examination is necessary to assess the current nature, extent and severity of his left ankle disability manifested by loss of sensation. The record indicates that the Veteran underwent private physical therapy for his left ankle in January 2018, but complete records were not provided. On remand, any previously unobtained and ongoing relevant treatment records should be obtained. 2. Entitlement to TDIU is remanded. As noted above in the Introduction, at the October 2021 hearing, the Veteran raised entitlement to TDIU. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, in light of Rice, the issue of entitlement to TDIU is before the Board. Because the Veteran's TDIU claim is inextricably intertwined with the claims remaining on appeal, appellate consideration of entitlement to a TDIU rating is deferred pending resolution of the remaining claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Send the Veteran an Application for Increased Compensation Based on Unemployability, VA Form 21-8940, and notice of how to substantiate a claim for TDIU. 2. Obtain any outstanding VA treatment records. 3. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, to include records from Olmsed Medical Center. 4. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current nature and severity his left ankle disability as manifested by loss of sensation. The examination should be conducted while the Veteran is not wearing an ankle brace. All necessary tests, to include neurological testing, should be performed. All findings should be reported in detail. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, 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.