Citation Nr: 21005471 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-09 097 DATE: February 1, 2021 ORDER A rating in excess of 30 percent for left ankle disability is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The record does not reflect the Veteran's service-connected left ankle disorder is manifested by ankylosis with plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. 2. The Veteran’s service-connected disabilities have precluded him from obtaining and maintaining substantial and gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for service-connected left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270-5271. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.326, 3.340, 3.655, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1967 to December 1971. The Veteran presented sworn testimony at a hearing before the undersigned in July 2016. The Board remanded this issue for additional development in May 2018 and in February 2020. 1. Entitlement to a rating in excess of 30 percent for left ankle disability. The Veteran asserts that he is entitled is entitled to a disability rating in excess of 30 percent for his left ankle disability. Diagnostic Code 5270 provides ratings for ankylosis of the ankle. Since the record does not show that the Veteran has ankylosis of the left ankle, it is not applicable. Diagnostic Code 5271 provides ratings based on limitation of motion of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling; and marked limitation of motion of the ankle is rated as 20 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Codes 5256 through 5261 related to the knees are not applicable because the record does not show ankylosis of the right knee, recurrent subluxation or lateral instability of the right knee, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, or limitation of flexion or extension of the right knee. 38 C.F.R. § 4.71a. 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. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, for example, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Analysis As previously noted, the Veteran testified that his left ankle disability had worsened since his November 2013 VA examination and warranted an increased rating. See July 2016 Hr’g Tr at 6-8. The Veteran was afforded a VA examination in December 2018. The Veteran complained of dull, aching pain in his left ankle, including swelling, burning and pain. The Veteran was issued braces for both his knees and ankles but does not wear them because they are comfortable. The Veteran described daily flare-ups that occur with swelling after activity, along with pressure and dullness that is helped with elevation. He stated with prolonged activity, the pain is 10 out of 10. The Veteran reported he is able to wash dishes, cook, grocery shop, shave, wash clothing, fold clothing and drive. The Veteran’s range of motion was plantar flexion from 0 to 35 degrees and dorsiflexion from 0 to 15 degrees. The examiner noted that pain prohibits movement and pain was noted on the examination that causes functional loss. The examination was not conducted during a flare-up; however, the Veteran’s range of motion during flare-ups in terms of motion is described as plantar flexion from 0 to 15 degrees and dorsiflexion from 0 to 10 degrees. The examiner documented the Veteran does not have left ankle instability or dislocation, muscle atrophy or ankylosis. The Veteran reported occasional use of a brace and regular use of a cane. The examiner documented that there is no evidence of nonunion of malunion. The Veteran does not meet the criteria for a 40 percent evaluation under Diagnostic Code 5262 because the record does not show nonunion of the tibia and fibula with loose motion, notwithstanding the Veteran’s use of a brace, and given the range of motion findings, he does not have ankylosis. 2. Entitlement to a TDIU. The Veteran asserts that his service-connected disabilities, i.e., his back disability, his right ankle and his left ankle disability, combine to preclude him from obtaining or following substantially gainful employment. See November 2018 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. Service connection is in effect for residual, fracture, left fibula with ankle at 30 percent; radiculopathy, left lower extremity at 20 percent from April 11, 2014; degenerative arthritis, lumbar spine with spinal stenosis at 100 percent from January 19, 2017 to May 1, 2017 and at 20 percent from May 1, 2017; right lower extremity radiculopathy at 10 percent from April 11, 2014 and at 20 percent from March 28, 2019 and right ankle arthritis with residual arthroscopic scar at 10 percent February 13, 2008. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system or of a common etiology or single accident are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Here, as the Veteran’s psychiatric disability, tinnitus and bilateral hearing loss are of a common etiology, and the combined rating for Veteran’s service-connected disabilities is 60 percent, the Veteran’s service-connected disabilities satisfy the criteria set forth in 38 C.F.R. § 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran lists October 30, 1997 as the last time he worked full-time. See November 2018 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran was last employed as a garbage man. Additionally, the Veteran completed one year of college, along with computer classes 30 years ago. The Board notes, the Veteran’s VA back examiner described the functional impact of the Veteran’s back condition as him not being a candidate for employment requiring heavy lifting, frequent bending and/or prolonged walking. See March 2015 Back DBQ. (Continued on the next page)   Given the evidence regarding the severity of the Veteran’s service-connected disabilities, the Veteran’s functional limitations due to his service-connected disabilities, his individual work experience and training, and with resolution of all reasonable doubt in his favor, the Board finds that the evidence shows he is entitled to an award of a TDIU rating. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Thus, entitlement to a TDIU is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jacquelynn M. Jordan, 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.