Citation Nr: 21008216 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 15-02 374 DATE: February 12, 2021 ORDER A rating in excess of 20 percent for a left ankle disability is denied. A total disability rating based on individual unemployability (TDIU) as a result of the Veteran’s service-connected left ankle disability is denied. FINDINGS OF FACT 1. The Veteran’s left ankle disability does not result in any ankylosis. 2. The Veteran does not meet the schedular rating criteria for a TDIU, and his service-connected left ankle disability is not shown to preclude him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5270-74. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1965 to May 1967. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran submitted a service connection claim for a left ankle disability. An August 2012 rating decision granted service connection and assigned a noncompensable rating effective August 25, 2010, the day the Veteran’s service connection claim was received by VA. An October 2012 rating decision granted an increased rating of 20 percent effective August 25, 2010. The Veteran disagrees with the assigned rating and asserts he is entitled to a higher rating. The Veteran’s left ankle disability is evaluated under Diagnostic Code 5010-5271. Diagnostic Code 5010 evaluates degenerative arthritis under Diagnostic Code 5003, which in turn evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes, in this case Diagnostic Code 5271. Diagnostic Code 5271 evaluates range of motion in the ankle. A 10 percent rating is assigned for moderate limitation of motion and a 20 percent rating, the maximum rating, is assigned for marked limitation of motion. Ankle dorsiflexion is measured from 0 degrees to 20 degrees; plantar flexion is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5270 evaluates ankylosis of the ankle and Diagnostic Code 5272 evaluates ankylosis of the subastragalar or tarsal joint. The record contains no evidence of ankle ankylosis, and the Veteran has not described symptoms that are suggestive of ankylosis. Therefore, these Diagnostic Codes are not applicable and will be discussed no further. Diagnostic Code 5273 evaluates malunion of the os calcis or astragalus. The medical record contains no evidence of malunion of the os calcis or astragalus of the left ankle, and the Veteran has not described symptoms that are suggestive of malunion of os calcis or astragalus of the left ankle. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5274 evaluates astragalectomy, or removal of the talus bone. The medical record contains no evidence of removal of the talus bone, and the Veteran has not described symptoms that are suggestive of malunion of removal of the talus bone. Therefore, this Diagnostic Code is not applicable and will not be discussed further. The Board notes that words such as moderate and marked are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The Veteran has been assigned a 20 percent rating under Diagnostic Code 5271, the maximum rating available. The evidence of record fails to establish that a higher disability rating is warranted as ankylosis of his left ankle has not been shown. In September 2012, the Veteran was afforded a VA examination. He reported having flare-ups that resulted in increased pain and limited weight-bearing. On examination, he demonstrated dorsiflexion to 10 degrees and plantar flexion to 20 degrees, both with objective evidence of painful motion. Repetitive use testing resulted in no additional limitation of range of motion. The examiner indicated that the Veteran had functional loss that included less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. He retained normal 5/5 left ankle strength. The examiner indicated that there was no ankylosis, no joint instability, no medial tibial stress syndrome, no stress fracture, no Achilles tendonitis, no Achilles tendon rupture, and no malunion of the calcaneus or talus. In January 2013, the Veteran was afforded a VA examination. He reported having flare-ups that resulted in increased pain and limited weight-bearing. On examination, he demonstrated normal dorsiflexion to 20 degrees and plantar flexion to 20 degrees, both without objective evidence of painful motion. Repetitive use testing resulted in no additional limitation of range of motion. The examiner indicated that the Veteran had functional loss that included less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. He retained normal 5/5 left ankle strength. The examiner indicated that there was no ankylosis, no joint instability, no medial tibial stress syndrome, no stress fracture, no Achilles tendonitis, no Achilles tendon rupture, and no malunion of the calcaneus or talus. In August 2019, the Veteran was afforded a VA examination. He reported having flare-ups that resulted in limitations sitting, driving, reaching, prolonged standing, walking, squatting/kneeling, lifting, pushing/pulling, climbing, and using foot controls. On examination, he demonstrated dorsiflexion from 6 to 30 degrees and plantar flexion from 30 to 6 degrees. The examiner reported that pain was noted on examination with rest and nonmovement. The examiner indicated there was evidence of pain with weight-bearing and non-weight-bearing. The examiner indicated there was objective evidence of localized tenderness or pain. Repetitive use testing resulted in no additional limitation of range of motion. The examiner indicated that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period of time and during flare-ups, but did not result in any additional limitation of range of motion. The examiner indicated that the Veteran had functional loss that included being limited or prevented in performing the physical requirements of employment, household chores, lawn mowing and yard work, shopping, participation in family outings, recreational events such as walking, hiking, biking, and running, and sleeping. He retained 4/5 left ankle strength with no muscle atrophy. The examiner indicated that there was no ankylosis. The examiner indicated there was left ankle instability or dislocation suspected. Having reviewed the evidence of record, the Board concludes that the Veteran’s left ankle findings do not show ankylosis, the only higher rating available. In essence, the Veteran is in receipt of the maximum schedular evaluation for his left ankle disability based on limitation of motion, even when functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 is considered. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). The only higher ratings available are a 30 and 40 percent rating for ankylosis of the ankle. Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Accordingly, a schedular rating in excess of 20 percent prior for a left ankle disability is not warranted, and the claim is denied. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but 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. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (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 evaluation 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 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In September 2020, the Executive Director of Compensation Services denied a TDIU on an extraschedular basis. As the Director has considered the issue in the first instance, the Board may now evaluate the claim. Wages v. McDonald, 27 Vet. App. 233 (2015). In December 2012, the Veteran asserted entitlement to a TDIU. The Veteran is service connected for a left ankle disability rated at 20 percent disabling. As such, the Veteran does not meet the schedular rating criteria for a TDIU. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. A review of the competent evidence of record, which includes the Veteran’s medical records, the lay statements of the Veteran and his wife, and the opinions of VA examiners, when taken in total, does not suggest unemployability as a result of his service-connected left ankle disability. In a December 2012 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), the Veteran reported that his left ankle disability prevented him from securing or following any substantially gainful employment. He indicated that he last worked full time in 2011 in construction. He indicated that he left his employment due to his disability. He indicated that he had one year of high school education. In November 2013, he reported that he was let go from his work because of his left ankle disability. In August 2019, he reported that he had a GED. The Veteran’s wife reported that no one wanted to hire someone that walked around a construction job with a cane. A September 2012 VA examiner reported that the Veteran’s left ankle disability prevented him from standing on a ladder and from performing prolonged weight-bearing. The examiner reported that the Veteran was unable to work in construction-roofing and shingling. A January 2013 VA examiner reported that the Veteran’s left ankle disability was the main reason he stopped work in general construction and roofing due to being unsteady on ladders and roofs. The examiner reported that the Veteran was not able to do construction or other heavy labor involving uneven surfaces or prolonged weight-bearing. The examiner reported that the Veteran had a limited education and did not have skills that would allow him to secure and maintain gainful employment in a sedentary occupation. An August 2019 VA examiner reported that the Veteran’s left ankle disability resulted in the following functional impacts: must change positions every five minutes, unable to reach or work overhead, unable to stand more than one to two minutes, unable to walk more than one to two feet, unable to squat/kneel, unable to lift more than 5 pounds, must avoid climbing stairs, inclines, and declines, unable to climb ladders, unable to use foot controls, and unable to climb. The Veteran has not identified or submitted any competent evidence demonstrating that his service-connected left ankle disability precludes him from securing and maintaining substantially gainful employment and entitled him to a TDIU. As such, the claims file does not show that the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected left ankle disability. While the Veteran may not be able to perform his past work in construction and roofing, the Board does not believe that the Veteran’s service-connected left ankle disability prevents him from obtaining or maintaining substantially gainful employment consistent with the VA examiners’ findings, such as an unskilled job that involved sitting with the ability to alternate sitting and standing at will, such as a store greeter, a surveillance system monitor, or a call-out operator. From the above, it is the Board’s determination that the Veteran is able to obtain or maintain substantially gainful employment. The rating schedule was created as a guide to evaluating disabilities resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Accordingly, a TDIU on an extraschedular basis is denied. Kelli A. Kordich Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.