Citation Nr: 21005658 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-12 996 DATE: February 2, 2021 ORDER Entitlement to an evaluation in excess of 10 percent disabling for chronic right ankle sprain with mild degenerative joint disease prior to January 26, 2012 is denied. Entitlement to an evaluation of 30 percent, but no higher, for chronic right ankle sprain with mild degenerative joint disease from March 1, 2012, to January 31, 2018 is granted. Entitlement to an evaluation in excess of 10 percent disabling for chronic right ankle sprain with mild degenerative joint disease from April 1, 2018 to June 14, 2018 is denied. Entitlement to an evaluation in excess of 20 percent disabling for chronic right ankle sprain with mild degenerative joint disease from June 15, 2018 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s chronic right ankle sprain with mild degenerative joint disease did not present with marked limitation of motion, nor did it present with ankylosis, prior to January 26, 2012. 2. The Veteran’s chronic right ankle sprain with mild degenerative joint disease presented with ankylosis from March 1, 2012, to January 31, 2018. 3. The Veteran’s chronic right ankle sprain with mild degenerative joint disease did not present with marked limitation of motion, nor did it present with ankylosis from April 1, 2018 to June 14, 2018. 4. The Veteran’s chronic right ankle sprain with mild degenerative joint disease did not present with ankylosis from June 15, 2018. 5. During the applicable appellate periods, the Veteran has not met the schedular requirement for TDIU, and his service-connected chronic right ankle sprain with mild degenerative joint disease does not preclude him from securing or following a substantially gainful occupation consistent with his education and occupational background. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for chronic right ankle sprain with mild degenerative joint disease prior to January 26, 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5271. 2. The criteria for a rating of 30 percent for chronic right ankle sprain with mild degenerative joint disease from March 1, 2012, to January 31, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5271, 5270. 3. The criteria for a rating in excess of 10 percent disabling for chronic right ankle sprain with mild degenerative joint disease from April 1, 2018 to June 14, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5271. 4. The criteria for rating a in excess of 20 percent disabling for chronic right ankle sprain with mild degenerative joint disease from June 15, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5271. 5. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1976 to May 1979. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in June 2017 and November 2019 when it was remanded to the Agency of Original Jurisdiction (AOJ). In a May 2018 rating decision, the RO granted a temporary evaluation of 100 percent due to convalescence, effective February 1, 2018. In an April 2013 rating decision, the RO granted a temporary evaluation of 100 percent disabling due to convalescence, effective January 26, 2012. These are staged ratings, involving a simultaneous increase and decrease in compensation, and not a rating reduction. Reizenstein v. Peake, 22 Vet. App. 202, 208 (2008); O’Connell v. Nicholson, 21 Vet. App. 89, 93 (2007). As the RO did not assign the maximum disability rating possible throughout the entire period on appeal, however, the appeal for higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular 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). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. 1. Entitlement to an evaluation in excess of 10 percent disabling for chronic right ankle sprain with mild degenerative joint disease prior to January 26, 2012 2. Entitlement to an evaluation in excess of 10 percent disabling for chronic right ankle sprain with mild degenerative joint disease from March 1, 2012, to January 31, 2018 3. Entitlement to an evaluation in excess of 10 percent disabling for chronic right ankle sprain with mild degenerative joint disease from April 1, 2018 to June 14, 2018 4. Entitlement to an evaluation in excess of 20 percent disabling for chronic right ankle sprain with mild degenerative joint disease from June 15, 2018 The Veteran’s right ankle is rated under Diagnostic Code 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. With regard to the Veteran’s right ankle disability, the hyphenated diagnostic code indicates that degenerative arthritis (Diagnostic Code 5010) is rated under the criteria for limited motion of the ankle (Diagnostic Code 5271). Under Diagnostic Code 5271, for limited motion of ankle, moderate limited motion is rated 10 percent disabling and marked limited motion is rated 20 percent disabling. 38 C.F.R. § 4.71a. Normal ankle joint motion is from zero to 20 degrees of dorsiflexion and zero to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. The terms “moderate” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just,” and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6. To warrant a 30 percent rating, there must be evidence of malunion of the tibia and fibula (Diagnostic Code 5262), or ankylosis of the ankle in plantar flexion between 30 and 40 degrees or in dorsiflexion between zero and 10 degrees (Diagnostic Code 5270). The Board finds that for the period prior to January 26, 2012 and from April 1, 2018 to June 14, 2018, the record does not demonstrate the requisite manifestations for a rating in excess of 10 percent for the chronic right ankle sprain with mild degenerative joint disease. From the period of March 1, 2012 to January 31, 2018, a rating of 30 percent is warranted due to ankylosis at plantar flexion and dorsiflexion. Additionally, the Board finds that from June 15, 2018 and thereafter, the record does not demonstrate manifestations for a rating in excess of 20 percent for the Veteran’s chronic right ankle sprain with mild degenerative joint disease. The Veteran underwent a VA examination in December 2009. He reported pain, stiffness, and swelling of his right ankle in addition to severe flare-ups. His range of motion testing revealed dorsiflexion to 20 degrees and plantar flexion to 45 degrees. No additional loss of range of motion or functional impairment was shown after repetitive testing. No joint ankylosis was noted. The Veteran reported intermittent but frequent ankle brace use. The Veteran was afforded another VA examination in January 2013. He reported occasional flare-ups of pain, swelling, and stiffness for which he takes prescription painkillers. Initial range of motion testing revealed dorsiflexion to 0 degrees and plantar flexion to 25 degrees. Repetitive use testing showed dorsiflexion to 5 degrees and plantar flexion to 25 degrees. Functional impairment after repetitive use testing showed less movement, weakened movement, and disturbance of locomotion. No pain on palpation or decreased muscle strength was shown. However, ankylosis in plantar flexion at less than 30 degrees and dorsiflexion between zero and 10 degrees was noted. No shin splints, tendonitis, tendon rupture, os calcis, or talus was present. The Veteran maintained ankle brace use. The Veteran underwent a VA examination in August 2016. He reported pain and limitation with standing and ambulation. Initial range of motion testing revealed dorsiflexion to 15 degrees and plantar flexion to 40 degrees. Pain noted on examination caused functional loss and there was evidence of pain on weight bearing as well as localized tenderness. Repetitive use testing did not show additional loss of range of motion. Muscle strength testing was normal. No instability, ankylosis, shin splints, tendonitis, tendon rupture, os calcis, or talus was present. The Veteran required an elastic sleeve with constant use. The Veteran received another VA examination in May 2017. He continued to experience pain, take medication, and wear an ankle brace. Initial range of motion measurements were normal. Pain was noted on examination but did not result in additional functional loss. Repetitive use testing was completed and did not result in additional loss of range of motion. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing repetitive use over time or flare-ups. Additional range of motion measurements were not provided by the examiner. Muscle strength was normal, however interference with standing was noted. No instability, ankylosis, shin splints, tendonitis, tendon rupture, os calcis, or talus was present. The Veteran relied on regular cane use to keep weight off his ankle. The examiner noted the functional impact of the Veteran’s condition as reducing his ability to stand or walk for prolonged periods of time. Pursuant to the most recent Board remand, the Veteran received a VA examination in January 2020. He reported current symptoms of pain and swelling impacting his ability to walk, stand, and climb stairs. Initial range of motion testing revealed dorsiflexion to 10 degrees and plantar flexion to 20 degrees. Pain was noted on the examination and caused functional loss. There was also evidence of pain on weight bearing. Repetitive use testing showed additional loss of range of motion with dorsiflexion to 10 degrees and plantar flexion to 15 degrees along with pain, weakness, and lack of endurance. Repeated use over time resulted in dorsiflexion to 5 degrees and plantar flexion to 10 degrees. Range of motion measurements during flare-ups were dorsiflexion and plantar flexion to 5 degrees. Muscle strength testing was 4 out of 5. No instability, ankylosis, shin splints, tendonitis, tendon rupture, os calcis, or talus was present. Functional impact of the Veteran’s ankle resulted in stiffness, pain, difficulty standing more than 20 minutes, walking more than a quarter of a mile, or climbing more than a single flight of stairs. There was objective evidence of pain on passive range of motion testing as well as on non-weight bearing testing of the right ankle. Based on the evidence of record, the Board finds that a rating in excess of 10 percent for the right ankle is not warranted for the period prior to January 26, 2012 or from April 1, 2018 to June 14, 2018. This evaluation contemplates pain on motion and is also consistent with moderate limitation of motion. In order to warrant a higher evaluation, the disability must approximate marked limitation of motion, which the Board finds is not demonstrated on this record taking into account the lay and medical evidence of record. For the period of March 1, 2012 to January 31, 2018, a 30 percent rating is granted under Diagnostic Code 5270 as the January 2013 VA examination revealed ankylosis in plantar flexion less than 30 degrees and in dorsiflexion between zero and 10 degrees. For the period from June 15, 2018, a rating in excess of 20 percent is not warranted. The Veteran’s condition is contemplated by the rating criteria and the evidence reveals a marked limitation of motion based on dorsiflexion and plantar flexion to 5 degrees. The Board also finds that the weight of the lay and medical evidence does not demonstrate symptoms that would warrant a rating in excess of 20 percent. To that end, there was no evidence of malunion of the tibia and fibula (Diagnostic Code 5262), or ankylosis of the ankle in plantar flexion between 30 and 40 degrees or in dorsiflexion between zero and 10 degrees (Diagnostic Code 5270). 5. Entitlement to a total disability rating based on individual unemployability A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; 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. In adjudicating the issue of entitlement to a TDIU, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. As an initial matter, the Board finds that the Veteran’s TDIU claim is part and parcel with the increased rating claim on appeal, which was filed in September 2009. See Rice v. Shinseki, 22 Vet. App. 447 (2009). From January 26, 2012 to February 29, 2012 and from February 1, 2018 to March 31, 2018 the Veteran was in receipt of a temporary 100 percent rating for convalescence for his service-connected chronic right ankle sprain with mild degenerative joint disease. The Veteran’s service-connected disabilities include chronic right ankle sprain with mild degenerative joint disease, rated at 10 percent prior to January 26, 2012, from March 1, 2012 to January 31, 2018, from April 1, 2018 to June 14, 2018, and rated at 20 percent from June 15, 2018; tinnitus rated at 10 percent from November 17, 2009; meniscal tear with degenerative arthritis, left knee, rated at 10 percent from January 17, 2020; gastroesophageal reflux disease rated at 10 percent from January 17, 2020; a noncompensable rating for right ankle surgical scar from January 24, 2013; and a noncompensable rating for bilateral hearing loss from October 31, 2016. His combined ratings, aside from the periods of convalescence, did not exceed 40 percent. Thus, the Veteran did not meet the schedular requirements for TDIU during the appeal period and may not, as a matter of law, be awarded a TDIU pursuant to 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(a). Nonetheless, if the schedular requirements are not met, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. § 4.16 (b). See Bowling v. Principi, 15 Vet. App. 1 (2001). 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). Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In the instant case, the Veteran reported that his unemployability is based on his service-connected right ankle condition. See Application for Increased Compensation Based on Unemployability, dated March 2017. Having reviewed the claims file, the Board finds that the evidence of record does not satisfy the requirements for referral of the issue of the Veteran’s entitlement to a TDIU pursuant to 38 C.F.R. § 4.16 (b). In terms of education, the Veteran reported in his March 2017 TDIU application that he completed high school. At his Board hearing he attested to no additional schooling or training, difficulties with his studies while in high school, and no knowledge of computers. The Veteran also stated he had some skills as a mechanic; however, he would be unable to perform the duties of a mechanic due to his right ankle. Regarding employment, he reported that after active duty service he was a mail carrier with the postal service for 31 years. He stated that he retired at the age of 62 in order to preserve the limited functionality of his right ankle as his doctor was recommending an additional surgery. He last worked full-time in May 2016. At a VA examination in December 2009, the Veteran reported increased tardiness to work due to increased pain. In a January 2013 examination, he reported he did not miss work due to his ankle problems, but that his gait, and ability to carry loads of mail were adversely affected. In an August 2016 examination, the Veteran described that he was unable to walk greater than a mile and could not stand greater than 30 minutes. In May 2017, an examiner noted the Veteran’s service-connected disabilities limited his ability to function in an occupational environment as his ankle condition reduces his ability to stand or walk for prolonged periods. In January 2020, an examiner noted the Veteran’s difficulty with performing physical activities of employment but asserted there was no effect of the ankle diagnosis on sedentary activities of employment. The Board finds that the evidence of record, lay and medical, does not reflect that the Veteran’s service-connected chronic right ankle sprain with mild degenerative joint disease prevents him from securing or following substantially gainful employment. As previously noted, the fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. Van Hoose, 4 Vet. App. at 361. The question is whether the Veteran is capable of performing the physical and mental acts required by employment due to his service-connected disabilities, not whether he can find employment. The Board is sympathetic to the Veteran and has no reason to doubt his assessment that he is unable to work as a mail carrier. At issue is not whether the Veteran’s service-connected disabilities would preclude him from securing and following his prior occupation, but whether his service-connected disabilities would preclude him from securing and following any substantially gainful occupation consistent with his education and occupational background. 38 C.F.R. § 4.16. To the extent that the Veteran is claiming entitlement to a TDIU based solely on his service-connected disabilities, the Board finds that the evidence of record weighs against his assertions, including the January 2020 medical opinion that the Veteran’s right abilities disabilities did not impact his ability to perform sedentary work. The Board recognizes that the Veteran’s service-connected difficulties have negatively impacted his ability to perform skills required for gainful occupation. This has been considered, however, in his assigned individual impairment ratings. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.”). Here, the Board finds that the weight of evidence, lay and medical, including the Veteran’s level of education, special training, and previous work experience, is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected right ankle disability. See 38 C.F.R. § 4.16. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107 (b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107 (a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107 (b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). After careful review of the entire record, the Board had determined a preponderance of the evidence weighs against the Veteran’s claim. Thus, entitlement to a TDIU must be denied. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, 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.