Citation Nr: 21075575
Decision Date: 12/20/21	Archive Date: 12/20/21

DOCKET NO. 15-46 824
DATE: December 20, 2021

ORDER

Entitlement to an initial 20 percent rating, but no higher, from November 9, 2014 through December 8, 2015, for right ankle tendonitis and instability due to partial thickness posterior talofibular tear, is granted, subject to controlling regulations governing the payment of monetary awards.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from April 2, 2019 (but no earlier) through June 17, 2019, is granted, subject to controlling regulations governing the payment of monetary awards.

FINDINGS OF FACT

1. The evidence is at least evenly balanced as to whether, from the November 9, 2014 effective date of service connection through December 8, 2015, the Veteran's right ankle tendonitis and instability due to partial thickness posterior talofibular tear was manifested by limitation of dorsiflexion of the ankle to 15 degrees, with additional significant loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, and incoordination during flare ups and with repeated use over time; there was no ankle ankylosis, functional equivalent of ankylosis, malunion of the os calcis, astragalus, or astragalectomy.

2. During the claim period from November 9, 2014 through June 17, 2019, the Veteran was service-connected for the following disabilities: posttraumatic stress disorder (PTSD), rated 30 percent disabling, from December 21, 2015; right ankle tendonitis and instability due to partial thickness posterior talofibular tear, now rated 20 percent disabling; lumbar spine strain, rated 10 percent disabling; left great toe sprain, rated 10 percent disabling; tinnitus, rated 10 percent disabling; right patellar knee tendonitis, rated 10 percent disabling; left knee patellar tendonitis, rated 10 percent disabling; left ear hearing loss, rated noncompensable; and tension type headaches, rated noncompensable; his combined disability rating is now 60 percent, from November 9, 2014 through December 20, 2015, and 70 percent, from December 21, 2015 through June 17, 2019. 

3. From April 2, 2019 (but no earlier) through June 17, 2019, the Veteran's service-connected disabilities precluded all substantially gainful employment for which his education and occupational experience would have otherwise qualified him.

CONCLUSIONS OF LAW

1. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial 20 percent rating, but no higher, from November 9, 2014 through December 8, 2015, for right ankle tendonitis and instability due to partial thickness posterior talofibular tear, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5270-5274 (in effect prior to February 7, 2021).

2. The criteria for a TDIU due to service-connected disabilities, from April 2, 2019 (but no earlier) through June 17, 2019, are met. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 2009 to November 2014. His awards include the Army Commendation Medal.

These matters come before the Board of Veterans' Appeals (Board) from a January 2015 rating decision, in which the agency of original jurisdiction (AOJ) awarded service connection for right ankle instability due to partial thickness posterior talofibular tear and assigned an initial 10 percent disability rating, from November 9, 2014.

In March 2017, the AOJ assigned a 20 percent rating for the service-connected right ankle disability, from December 9, 2015.

In September 2019, the Board denied entitlement to an initial rating higher than 10 percent, prior to December 9, 2015, and a rating higher than 20 percent, since that date, for the service-connected right ankle disability. The Board also remanded the issue of entitlement to a TDIU due to service-connected disabilities for further development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).

In October 2019, the AOJ decreased the rating for the service-connected right ankle disability from 20 percent to 10 percent, from July 13, 2019.

In July 2020, a Decision Review Officer (DRO) awarded a TDIU, from June 18, 2019. The TDIU issue on appeal was raised as part and parcel of the appeal for a higher initial rating for the service-connected right ankle disability. Therefore, the claim period on appeal for the Veteran's TDIU claim dates back to the November 9, 2014 effective date of service connection for the right ankle disability and the issue of entitlement to a TDIU, from November 9, 2014 through June 17, 2019, remains on appeal before the Board. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). 

In November 2020, the Court set aside the Board's September 2019 decision, in part, and remanded to the Board the issue of entitlement to a higher initial rating for the service-connected right ankle disability for readjudication in compliance with directives specified in an October 2020 Joint Motion filed by counsel for the Veteran and VA.

In May 2021, the Board restored the 20 percent rating for the service-connected right ankle disability for the period from July 13, 2019 and denied entitlement to an initial rating higher than 20 percent for the right ankle disability, for the period from December 9, 2015. The Board also remanded the issue of entitlement to an initial rating higher than 10 percent for the service-connected right ankle disability for the period prior to December 9, 2015 for further development.

In the May 2021 remand, the Board instructed the AOJ to obtain a retrospective medical opinion as to the severity of the Veteran's service-connected right ankle disability during the period prior to December 9, 2015. Pursuant to the Board's remand, a retrospective medical opinion was obtained in August 2021. Therefore, the AOJ substantially complied with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

I. Higher Initial Rating

Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155.

Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999).

If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.

In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.

Disabilities evaluated on the basis of limitation of motion require VA 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 determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. 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. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59.

The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71A were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. In this case, the only remaining period on appeal for the Veteran's service-connected right ankle disability is dated from the November 9, 2014 effective date of service connection through December 8, 2015. Therefore, the Board may only consider the Veteran's claim under the former rating criteria in effect prior to February 7, 2021.

Entitlement to an initial rating higher than 10 percent, from November 9, 2014 through December 8, 2015, for right ankle tendonitis and instability due to partial thickness posterior talofibular tear

The Veteran's right ankle tendonitis and instability due to partial thickness posterior talofibular tear is rated under 38 C.F.R. § 4.71a, DC 5271 on the basis of limitation of ankle motion. Under the old version of DC 5271, a 10 percent rating is warranted for moderate limitation of ankle motion and a maximum 20 percent rating is warranted for marked limitation of ankle motion. 38 C.F.R. § 4.71a, DC 5271 (in effect prior to February 7, 2021).

For rating purposes, normal ranges of motion in an ankle joint are 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II.

Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds, for the following reasons, that the evidence is at least evenly balanced as to whether the Veteran manifested right ankle symptoms of the type and extent, frequency, and/or severity, as appropriate, to warrant an initial 20 percent rating, but no higher, for right ankle tendonitis and instability due to partial thickness posterior talofibular tear, from November 9, 2014 through December 8, 2015.

The Veteran reported during a November 2014 VA examination that his right ankle symptoms started in 2010 when he injured his ankle while playing soccer. His ankle improved with physical therapy, but he never fully recovered and he continued to experience continuous ankle pain. The pain was stabbing in nature, was located in the lateral joint over the malleolus, was generally 2-6/10 in intensity on a continuous basis, and was 5-6/10 in intensity approximately 3 times per week (especially when the Veteran was physically active). The pain was aggravated by high impact and heavy weight bearing activities, jumping, and rotating on the right foot. The Veteran was able to handle routine office administrative work (e.g., typing and carrying office items weighing more than 20 pounds) and routine household chores (e.g., shopping, carrying grocery bags weighing more than 20 pounds, heavy vacuuming, sweeping, washing dishes, and mowing the lawn). He denied any other significant functional or activity limitations due to his right ankle disability. 

Examination revealed that the ranges of right ankle motions were dorsiflexion to 15 degrees and plantar flexion to 45 degrees. The ranges of ankle motion remained the same following repetitive use testing. The Veteran's inversion sprain in 2010 continued to cause pain (4-5/10 in intensity), especially with weight bearing activities. There was no tenderness on palpation, repeated movement did not significantly reduce range of motion or cause pain, and ankle muscle strength was normal (5/5). The Veteran's posture and gait were normal, he did not use any assistive devices, there was no obvious limp or asymmetry, and there was no abnormal swelling, redness, or deformity. The examiner who conducted the November 2014 examination indicated that there was no significant additional limitation of ankle movement due to repetitive use, but that the ankle disability had significant potential for causing future functional impairment. Pain could be expected to significantly limit functional ability during flare ups or when the ankle was used repeatedly. This would be manifested as decreased ability to perform high impact, heavy weight bearing activities, and would not be expected to cause any additional reduction in range of motion. The Veteran was diagnosed as having chronic right ankle instability due to partial thickness posterior talofibular tear.

In his February 2015 notice of disagreement (VA Form 21-0958), the Veteran reported that the rating assigned for his service-connected right ankle disability did not reflect the limited motion and pain that he experienced on a daily basis. During the November 2014 examination, the ranges of ankle motion were performed while he was sitting on an examination table and the examiner did not take into consideration the weight/load of his body or the articulation of the ankle joint during normal/daily activities. Prior to service, the Veteran was generally very physically active and was an avid soccer player, but this was no longer possible.

In statements dated in February 2015, M.K. and D.H. reported that the Veteran was very physically active and played soccer prior to service, but that he was not the same after he returned from service. He gained weight, was in constant pain because his ankle had not healed correctly, was unable to run like he did before service, and was not able to play soccer due to pain. Overall, the Veteran's ability to function correctly in any of his physical activities was severely limited and the maintaining of his physical fitness and agility was noticeably hindered.

In a February 2015 statement (VA Form 21-4138), the Veteran reported that he was heavily engaged in playing soccer prior to service, but that due to his service-connected injuries (including his right ankle disability), he was unable to run without experiencing constant pain. There was additional pain while walking barefoot without the support of a shoe, and even the slightest weight on the foot (e.g., a blanket resting on the foot while lying in bed) caused pain. Also, instability and limited motion of the ankle made it difficult to stay in good physical shape. 

A December 2015 ankle conditions disability benefits questionnaire (DBQ) completed by physician S.A. indicates that the Veteran sustained a right ankle inversion injury while on active duty and that flare ups impacted the function of the ankle in that he was unable to play soccer or exercise as desired due to pain. There was functional loss/impairment of the ankle in terms of loss of motion and strength. The ranges of right ankle motion were recorded as being plantar flexion to 25 degrees and dorsiflexion to 0 degrees. The abnormal ranges of motion contributed to functional loss. The Veteran was able to perform repetitive use testing and there was no change in the ranges of ankle motion after repetitive use testing. There was pain with movement of the right ankle and when the ankle was used in weight bearing or non-weight bearing, but the pain did not contribute to functional loss. Rather, there was limited motion due to stiffness. There was localized tenderness or pain on palpation of the right ankle joint or soft tissue. There were contributing factors of disability in terms of less movement than normal, weakened movement, and pain on movement. Pain, weakness, fatigability, or incoordination significantly limited functional ability during flare ups or when the ankle was used repeatedly over time, but the physician was unable to estimate the range of motion loss due to pain and/or functional loss during flare ups or when the ankle was used repeatedly over time.

Moreover, muscle strength associated with right ankle plantar flexion and dorsiflexion was impaired (4/5), but there was no muscle atrophy. Ankle instability or dislocation was suspected and anterior drawer testing revealed that there was right ankle laxity when compared with the left ankle. The Veteran did not have shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, or malunion of the calcaneus (os calcis) or talus (astragalus) and the Veteran had not undergone a talectomy (astragalectomy). There was no scarring associated with the Veteran's ankle disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. He did not use any assistive devices and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. There was no objective evidence of crepitus. Diagnoses of right ankle tendonitis and stiffness were provided. This disability impacted the Veteran's ability to work in that prolonged weightbearing was impacted due to pain.

In August 2021, a VA physician reviewed the Veteran's claims file and explained, in pertinent part, that in reviewing the records prior to December 9, 2015, the Veteran sustained a right ankle injury early in his military career, which appears to have healed such that he was able to participate in sports that required strength and good range of motion of the ankle. Injuries later in service seemed to be with participation in sports, where the use of both ankles would be necessary. For instance, he was treated at the emergency room in April 2013 for rib pain from snowboarding (which requires good ankle strength) and was injured in August 2013 and July 2015 while playing volleyball (which requires good strength and range of motion to jump). A prior treatment record dated in March 2012 noted that he had been experiencing right ankle pain for 3 months, but there was a normal functional exam of the right ankle and there was no pain (only a popping sound) upon examination. A 2018 primary care note indicated that the Veteran only occasionally used Motrin for right ankle pain. This implied that the ankle condition was infrequent. Overall, from these accounts, it seemed that the right ankle had normal range of motion and muscular and ligament stability, such that the Veteran was able to play sports as of December 9, 2015. The physician speculated that the Veteran had full ranges of ankle motion (both active and passive) and could have had some pain after weight bearing, which he would have to tolerate or recover enough from in order to perform sports again.

Moreover, the physician explained that based on the March 2012 treatment record, the Veteran's pain was fairly constant for 3 months before he was evaluated. He was seen in May 2013 for injury to the right ankle while ruck marching, but he was able to play volleyball by August 2013 and was still playing sports in 2015. His ankle injury seemed to have flare ups only after injuries before 2015. Although the ranges of ankle motion were not measured, it can be assumed that they were normal. Otherwise, he would have been using a brace or would not have been participating in sports for fun (which would require full range of motion and strength).

The above evidence reflects that during the November 2014 VA examination, right ankle dorsiflexion was to 15 degrees and plantar flexion was to 45 degrees. These findings, by themselves and without consideration of functional impairment, would generally only warrant a 10 percent rating under DC 5271 (which contemplates moderate limitation of ankle motion) because they represent normal plantar flexion and limitation of dorsiflexion to more than half the normal value. With respect to functional impairment, the November 2014 examiner indicated that pain could be expected to significantly limit functional ability during flare ups or when the ankle was used repeatedly, but that this would be manifested as a decreased ability to perform high impact, heavy weight bearing activities, and would not be expected to cause any additional reduction in range of motion. However, the examiner acknowledged that the ankle disability had significant potential for causing future functional impairment. 

Regardless of the conclusions of the November 2014 examiner with respect to functional impairment of the ankle, the parties to the Joint Motion agreed that the November 2014 examination was inadequate because it did not include range of motion test results for pain on both active and passive motion and in both weight bearing and non-weight bearing. In this regard, the Veteran specified in his February 2015 notice of disagreement that the ranges of ankle motion were performed during the November 2014 examination while he was sitting on an examination table, and that the examiner did not take into consideration the weight/load of his body or the articulation of the ankle joint during normal/daily activities. Therefore, although the November 2014 examination report reflects that ankle dorsiflexion was limited to more than half the normal value, this examination report is minimally probative as to the extent of additional functional impairment of the ankle during flare ups and with repeated use over time.

The December 2015 ankle conditions DBQ indicates that dorsiflexion was to 0 degrees and that pain, weakness, fatigability, or incoordination significantly limited functional ability during flare ups or when the ankle was used repeatedly over time. The Board acknowledges that the physician who provided the August 2021 opinion explained that the Veteran's ankle injury seemed to have flare ups only after injuries before 2015 and that it was assumed that his ranges of ankle motion (both active and passive) were otherwise normal. This opinion was essentially based on the fact that the Veteran was still able to participate in sports (e.g. volleyball) as of 2015, without the use of a brace or other assistive device. However, the physician also noted that the Veteran could have had some pain after weight bearing, which he would have to tolerate or recover enough from in order to perform sports again. Moreover, the ranges of motion of the ankle were recorded during the November 2014 VA examination and dorsiflexion was limited, even without any additional impairment during flare ups and with repeated use over time (e.g. after playing sports). Also, the Veteran, M.K., and D.H. all explained how the Veteran was significantly limited in his ability to participate in physical activities following his discharge from service due to his ankle disability.

Overall, in light of the Veteran's reported symptoms, the ranges of motion measurements recorded in the November 2014 VA examination report and the December 2015 DBQ, and the inadequacy of the November 2014 examination, the Board finds that the evidence is at least evenly balanced as to whether the symptoms of the Veteran's service-connected right ankle disability resulted in marked limitation of ankle motion during the entire period from November 9, 2014 through December 8, 2015. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, an initial 20 percent rating under the old version of DC 5271, from November 9, 2014 through December 8, 2015, is warranted.

The Board also finds, however, that a rating higher than 20 percent is not warranted at any time during the claim period prior to December 9, 2015. The 20 percent rating that has been awarded for the service-connected right ankle disability is the maximum schedular rating for limitation of ankle motion under DC 5271. Evaluating an ankle disability under DC 5270 or DC 5272 requires a finding of ankylosis. Ankylosis is defined in general as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland's Illustrated Medical Dictionary (28TH Ed. 1994) at 86). The Court has held that a veteran may be entitled to a rating based on ankylosis if he experiences the functional equivalent of ankylosis when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45. Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021).

In this case, there is no evidence of any actual ankle ankylosis during the period from November 9, 2014 through December 8, 2015. Also, despite the limited ranges of ankle motion during this period, the Board finds that even considering ankle pain, flare ups, and other functional factors, the Veteran did not experience the functional equivalent of ankle ankylosis at any time during this period. In other words, a preponderance of the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran's ankle symptoms were not shown to be so disabling to actually or effectively result in immobility or fixation of the ankle at any point in the ranges of ankle motion. Therefore, a higher rating is not warranted on the basis of ankylosis/functional equivalent of ankylosis at any time during the claim period prior to December 9, 2015. See 38 C.F.R. § 4.71A, DC 5270 (in effect prior to February 7, 2021).

Moreover, there is no evidence of any malunion of the os calcis or astragalus or any astragalectomy. Thus, no separate and/or higher ratings are warranted on the basis of any such impairment at any time during the claim period prior to December 9, 2015. See 38 C.F.R. § 4.71A, DCs 5272-5274 (in effect prior to February 7, 2021).

The parties to the Joint Motion agreed that the Board did not adequately address whether an extraschedular rating is potentially warranted for the Veteran's right ankle disability during the claim period prior to December 9, 2015. Pursuant to 38 C.F.R. § 3.321 (b)(1), the Under Secretary for Benefits or the Director is authorized to approve an extraschedular rating if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321 (b)(1). The question of an extraschedular rating is a component of an appeal for a higher initial rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular rating when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008).

If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the AOJ or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321 (b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").

In determining whether a veteran's symptomatology is adequately contemplated by the rating schedule, the Court has provided some guiding principles as to how to recognize whether symptomatology is exceptional under 38 C.F.R. § 3.321 (b)(1). First, symptomology is exceptional only when it is of such nature or severity that conventional rating tools are not adequate to evaluate it properly. Second, the initial step in determining whether symptomatology is adequately contemplated by the rating schedule focuses solely on the functional impairments/symptoms of the disability at issue (as opposed to the functional effects of those impairments/symptoms). Third, if a symptom/impairment is not at all compensable under the rating schedule, then it does not warrant extraschedular consideration. Also, extraschedular consideration is not warranted for any symptom/impairment that clearly lacks a relationship to service or a service-connected disability. Long v. Wilkie, 33 Vet. App. 167 (2020).

In this case, with respect to the first prong of Thun, considering the pertinent evidence in light of the applicable criteria and considerations delineated above, the Board finds that the evidence does not establish such an exceptional disability picture as to render the schedular criteria for evaluating the Veteran's service-connected right ankle disability inadequate at any time prior to December 9, 2015. In other words, all of the symptoms and functional impairments associated with the Veteran's right ankle disability, as described above, are contemplated by the schedular rating criteria and the conventional rating tools are not inadequate to evaluate them properly.

In this regard, the symptoms associated with the Veteran's service-connected right ankle disability during the claim period prior to December 9, 2015 are ankle pain, tenderness, instability, and limited motion. These symptoms impaired the Veteran's ability to perform high-impact and weight-bearing activities. The Veteran's ankle symptoms and functional impairments are all contemplated by the appropriate rating criteria as set forth above (i.e., the criteria in DC 5271) and the provisions pertaining to functional impairment (i.e., 38 C.F.R. §§ 4.40, 4.45, 4.59). Specifically, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, disturbance of locomotion, interference with sitting, standing, and weight-bearing, instability, and crepitation. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Hence, the 20 percent rating now assigned for the service-connected right ankle disability during the claim period prior to December 9, 2015 contemplates all of the Veteran's reported and observed symptoms, as set forth above, and the Veteran has not demonstrated any symptomatology/impairments associated with his right ankle disability that falls outside the scope of the applicable criteria. 

Under these circumstances, the Board concludes that the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321 (b)(1) is not met, and that referral of this claim for extraschedular consideration is not warranted. See Long, 33 Vet. App. at 167; Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In sum, during the claim period from November 9, 2014 through December 8, 2015, the Veteran's right ankle disability resulted in limitation of ankle motion that is no more than 20 percent disabling under DC 5271. Accordingly, an initial 20 percent rating, but no higher, from November 9, 2014 through December 8, 2015, for right ankle tendonitis and instability due to partial thickness posterior talofibular tear, is warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71A, DCs 5270-5274.

As a final point, the Board notes that in conjunction with the appeal for a higher initial rating for the service-connected right ankle disability, other than the issue of entitlement to a TDIU prior to June 18, 2019 which is addressed below, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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).

II. TDIU

VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).

The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities affecting a single body system (e.g., orthopedic), among other things, will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a).

The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a).

In Ray v. Wilkie, 31. Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.

Entitlement to a TDIU due to service-connected disabilities, from November 9, 2014 through June 17, 2019.

As explained above, the Veteran's TDIU claim is on appeal as part and parcel of the appeal for a higher initial rating for the service-connected right ankle disability. Therefore, the claim period for the TDIU matter dates back to the November 9, 2014 effective date of service connection for the right ankle disability. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018).

During the claim period from November 9, 2014 through June 17, 2019, the Veteran was service-connected for the following disabilities: PTSD, rated 30 percent disabling, from December 21, 2015; right ankle tendonitis and instability due to partial thickness posterior talofibular tear, rated 20 percent disabling; lumbar spine strain, rated 10 percent disabling; left great toe sprain, rated 10 percent disabling; tinnitus, rated 10 percent disabling; right patellar knee tendonitis, rated 10 percent disabling; left knee patellar tendonitis, rated 10 percent disabling; left ear hearing loss, rated noncompensable; and tension type headaches, rated noncompensable. His combined disability rating is now 60 percent, from November 9, 2014 through December 20, 2015, and 70 percent, from December 21, 2015 through June 17, 2019. In light of these ratings and as disabilities affecting a single body system (e.g., orthopedic) will be considered as one disability for the purposes one 40 percent disability under 38 C.F.R. § 4.16 (a), the percentage ratings for the Veteran's service-connected disabilities have met the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a) since December 21, 2015.

The Veteran reported on a "Veteran's Application for Increased Compensation Based on Unemployability" forms (VA Form 21-8940) dated in July 2019 and February 2020 that he had a Master of Business Administration degree and that he worked as a financial advisor assistant from September 2018 until either February or April 2019. He was unable to work due to his service-connected disabilities in that he experienced sleep difficulties due to constant nightmares, which resulted in morning exhaustion and lack of energy during the day. He was socially isolated (including from family), was nervous being around many people at work or in public places, experienced negative intrusive thoughts and a hyperstartle response, was unable to concentrate, and was unable to remember simple instructions at work in order to complete work tasks. He would become angry when unable to complete tasks at work without the need for constant assistance from others. Also, the physical pain from his back, knees, and right ankle made it difficult to walk at times.

A signed "Request for Employment Information in Connection with Claim for Disability Benefits" form (VA Form 21-4192) completed by the Veteran's employer and dated in February 2020 indicates that the Veteran was employed on a full time basis until April 1, 2019, at which time his employment ended because he was unable to meet the standards of his employment due to mental and physical issues. Specifically, he was continuously troubled by lack of concentration and would lose focus on daily work tasks. He would repeatedly ask for assistance concerning the same instructions on a repeated basis, was unable to remember the work process, struggled working with a team, and became aggravated while trying to hide his lack of concentration. He did not like spending time with his coworkers, was tired most of the time, and called in sick multiple times due to physical pain caused by his back and knee disabilities.

In the July 2020 decision, the DRO awarded a TDIU and explained that the examiner who conducted July 2019 VA examinations indicated that the Veteran's back disability affected his capacity to sit for prolonged periods and lift heavy objects. His right ankle disability affected his ability to stand for 3 hours and walk for prolonged distances, and any weight bearing caused increased pain and instability. His bilateral knee disability impacted his ability to run, kneel, and squat. His headaches caused partial impairment that affected the quality of his work. Also, his psychiatric disability caused occupational and social impairment with reduced reliability and productivity.

In sum, the evidence indicates that the Veteran has an advanced business degree, but that he experienced difficulties with his employment due to his service-connected disabilities, that he stopped working on April 1, 2019 due to the impairments caused by his service-connected disabilities, and that he has not been gainfully employed since that time. Overall, his medical records and lay statements reflect significant impairments from his service-connected physical and psychiatric disabilities that have prevented him from performing any type of gainful employment consistent with his education and occupational experience.

Overall, the above discussion of the severity of the symptoms of the Veteran's service-connected disabilities and his educational and occupational experience, reflects that the preponderance of the evidence is in favor of a conclusion that he was unable to secure and follow substantially gainful employment as a result of his service-connected disabilities during the claim period prior to June 18, 2019. The earliest that it is factually ascertainable that the Veteran was unemployed and unable to secure and follow substantially gainful employment is April 2, 2019, the day after his gainful employment ended. As he was gainfully employed prior to this date, entitlement to a TDIU, from April 2, 2019 (but no earlier) through June 17, 2019, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

 

 

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Elwood, 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.