Citation Nr: 21009096 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-04 810 DATE: February 18, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for residuals of a left ankle fracture with osteomyelitis on an extraschedular basis is denied. FINDING OF FACT The Veteran’s residuals of a left ankle fracture with osteomyelitis do not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for residuals of a left ankle fracture with osteomyelitis on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Code 5299-5270. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United State Army from October 1965 to January 1969. During his period of service, the Veteran earned the National Defense Service Medal and Air Force Good Conduct Medal. Entitlement to an extraschedular rating for a left ankle disability The Veteran generally seeks an extraschedular rating for his residuals of a left ankle fracture with osteomyelitis. In its September 2018 remand, the Board referred the issue of entitlement to an extraschedular rating for a left ankle disability for consideration by the Director of Compensation Service. In October 2020, the Director determined that an increased evaluation on an extraschedular basis for residuals of a left ankle fracture with osteomyelitis had not been established for any time period. Despite the Director’s conclusion that an extraschedular rating was not warranted, the Board is not bound by the Director’s decision. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Therefore, in the case at hand, the Board must conduct a de novo review to determine whether assignment of an extraschedular rating is warranted. See id. An extraschedular disability rating is warranted 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 that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Specifically, the Court stated the determination of whether a veteran is entitled to an extraschedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated there must be a comparison between the level of severity and the symptomatology of the veteran’s service-connected disability with the established criteria found in the rating schedule for that disability. Second, if the schedular evaluation does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran’s exceptional disability picture exhibits other related factors such as “marked interference with employment” and “frequent periods of hospitalization.” Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors, such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Id. The Veteran’s residuals of a left ankle fracture with osteomyelitis is currently evaluated as 40 percent disabling under DC 5299-5270. See 38 C.F.R. § 4.71a. 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 evaluation assigned. See 38 C.F.R. § 4.27. The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and 99. Here, the hyphenated diagnostic code indicates that the Veteran’s left ankle disability is rated by analogy under the criteria for ankylosis of the ankle (Diagnostic Code 5270). 38 C.F.R. § 4.71a. The diagnostic codes in the rating schedule corresponding to disabilities of the ankle provide disability ratings on the basis of limitation of motion, ankylosis, and neurologic manifestations. 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; see Mitchell v. Shinseki, 25 Vet. App. 32 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. Turing to the evidence of record, the Veteran appeared for a VA ankle conditions examination in October 2014. Range of motion testing revealed plantar flexion to 0 degrees and dorsiflexion to 0 degrees. Pain was noted on examination. Interruption of mobility and stability, as well as pain contributed to functional loss. There was no evidence of pain with weight-bearing and no evidence of localized tenderness or pain on palpation. The Veteran was unable to perform repetitive use testing with at least three repetitions due to pain. Though the Veteran was not examined immediately after repetitive use over time, the examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner further indicated that the examination was not conducted during a flare-up; thus, he could not opine without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-up. Additional contributing factors to the Veteran’s disability included less movement than normal due to ankylosis; weakened movement due to muscle or peripheral nerve injury, etc.; disturbance of locomotion, and interference with standing. The examiner noted a reduction of muscle strength in the left ankle. The examiner also diagnosed ankylosis with abduction and eversion deformity in the plantar flexion to 0 degree. The examiner noted the Veteran required constant use of a wheelchair, occasional use of crutches, and regular use of a walker for stability of gait and balance. The examiner indicated that the Veteran’s condition impacted his ability to perform occupational tasks, as physical activity was limited due to his inability to stand, walk, or climb due to pain and instability. The examiner further noted that the Veteran’s limitations did not interfere with sedentary activity such as sitting or lying down. In October 2020 the Director of Compensation Service denied entitlement to an extraschedular rating in excess of 40 percent for residuals of a left ankle fracture with osteomyelitis. The Director determined that there was no impairment in nor of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent periods of hospitalization. In light of the governing regulations and based on a thorough review of the evidence of record, the Board agrees with the Director’s October 2020 determination that an extraschedular rating in excess of 40 percent for the Veteran’s left ankle disability is not warranted. As an initial matter, the Board finds that the schedular rating criteria reasonably contemplate the Veteran’s symptoms of his left ankle disability. To facilitate proper analysis of Thun’s first step, the Court provides six non-exhaustive or mandatory guiding principles. Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371 (Dec. 30, 2020). First, the sole focus of Thun’s first step is on the ability of the rating schedule to evaluate the veteran’s symptomatology; extraschedular consideration is not applicable to claims that may be properly evaluated with conventional schedular rating tools. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). Second, Thun’s first step deals exclusively with whether the veteran’s symptoms–interchangeably referred to by the Court as “functional impairments”–are exceptional. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). Third, where a symptom or impairment is not compensable under the rating schedule, it also does not warrant extraschedular consideration, as this would amount to a backdoor means to obtaining compensation for a condition the rating schedule intends to exclude. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020). Fourth, extraschedular consideration does not provide an exception to the rule that a disability is not compensable if it “cannot be attributed to an ‘injury’ or a ‘disease’ incurred or aggravated in the line of duty.” Terry v. Principi, 340 F.3d 1378, 1382 (Fed. Cir. 2003). Fifth, the Board is only required to discuss the theories of entitlement raised by the veteran or reasonably raised by the record. See Morgan, 31 Vet. App. at 168 (2019). Last, in reviewing the Board’s analysis of referral for extraschedular consideration, the Court will be mindful of the rule against prejudicial error. See Simmons v. Wilkie, 30 Vet. App. 267, 279 (2018). Thus, a failure of the Board to discuss whether extraschedular consideration is warranted for a particular symptom does not require an automatic remand. The evidence does not present an exceptional disability picture that renders the available schedular evaluation for the service-connected disability inadequate. First, the Board finds that the rating schedule fully contemplated the Veteran’s left ankle disability. In pertinent part, the Veteran’s VA examination and treatment records have shown symptoms of interruption of mobility and stability, pain, weakened movement and reduced muscle strength, disturbance of locomotion, and interference with standing. These symptoms, and the functional impairment caused thereby, are contemplated by the rating schedule, as DC 5270 provides ratings based on ankylosis of the ankle with limitation of motion and deformity. Here, the current 40 percent rating assigned to the Veteran’s left ankle is based upon the evidence showing symptoms analogous with ankylosis of the ankle, with decreased range of motion. See Thun, supra. While a 60 percent rating under DC 5164 is warranted for amputation of a lower extremity not improvable by prosthesis controlled by natural knee action, and DC 5056 awards a 100 percent rating for prosthetic replacement of the ankle joint, followed by a 40 percent rating for chronic residuals once the one-year period following implantation of prothesis has passed, the October 2014 VA examiner opined that Veteran’s left ankle disability did not cause functioning so diminished that amputation with prosthesis would equally serve the Veteran. Therefore, the Board finds that these DCs are not for contemplation with respect to an extraschedular rating. Moreover, while the October 2014 VA examination documents the Veteran’s constant use of a wheelchair, occasional use of crutches, and regular use of a walker, treatment records indicate the use of the aforementioned assistive devices is secondary to a traumatic left lower extremity injury. The Board thus finds that, taken as a whole, the evidence establishes that an unusual or exceptional disability pattern has not been demonstrated to render application of the regular rating criteria as impractical. Given that the Board finds the Veteran does not meet the first Thun element, it need not address any other Thun arguments. Nonetheless, while the Veteran’s left ankle disability may have had some effect on his occupational functioning, the Board notes there is no marked interference with employment, given his reports of remaining employed as a barber for about 35 years until he retired in 2000. Moreover, there is no indication or allegation that the Veteran’s left ankle disability has necessitated frequent periods of hospitalization during the pendency of this appeal. The Board notes that the October 2014 VA examiner opined that the Veteran’s left ankle disability impacted his ability to perform any type of occupational task, as physical activity was limited due to his inability to stand, walk, or climb due to pain and instability. The examiner noted that the Veteran’s limitations did not interfere with sedentary activity such as sitting or lying down. However, in this case, the Veteran’s disability picture is complicated by a significant left lower extremity medical and surgical history, which has left him with a severely degenerative left knee that causes him to be crutch-dependent at home and wheelchair-dependent when out. The Board finds that the level of interference shown with employment secondary to his left ankle disability is contemplated by the disability evaluations already assigned. Thus, the second element of Thun is not met. In summary, the Board does not find the disability picture pertaining to the Veteran’s residuals of a left ankle fracture with osteomyelitis to be so exceptional or unusual so as to render impractical the application of the schedular standard and require the assignment of an extraschedular rating. The Board reiterates that this finding is based on a de novo review of the evidence. Accordingly, the Veteran’s claim of entitlement to a disability rating in excess of 40 percent for residuals of a left ankle fracture with osteomyelitis on an extraschedular basis is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an extraschedular rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Joseph, 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.