Citation Nr: 21011170 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-22 613 DATE: March 1, 2021 ORDER Entitlement to a rating in excess of 20 percent for a right ankle disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. Entitlement to a special monthly compensation (SMC) based on loss of use of both lower extremities is denied. FINDINGS OF FACT 1. The Veteran’s right ankle disability is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle. 2. The Veteran’s service-connected disabilities do not preclude him from securing or maintaining substantially gainful employment. 3. The preponderance of the evidence is against a finding that the Veteran has suffered the anatomical loss or loss of use of his lower extremities, as defined by VA regulations. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for a right ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5271. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.15, 4.16. 3. The criteria for SMC based on loss of use are not met. 38 U.S.C. § 1114 (k); 38 C.F.R. § 3.350 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to March 1976. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues on appeal in September 2018 for further development. There has been substantial compliance with the directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 20 percent for a right ankle disability is denied. The Veteran seeks a rating in excess of 20 percent for his right ankle disability. In October 2012, the Veteran sought an increased rating for his right ankle disability. Thus, the period on appeal begins October 22, 2011, one-year prior to receipt of the Veteran’s claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran’s right ankle disability is rated under hyphenated Diagnostic Codes 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned. Under 38 C.F.R. § 4.71a, Diagnostic Code 5010 provides that post-traumatic arthritis will be rated as limitation of motion, dislocation, or other specified instability under the affected joint. Under 38 C.F.R. § 4.71a, Diagnostic Code 5271 provides ratings for limitation of motion of the ankle. Under Diagnostic Code 5271, a maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Prior to February 7, 2021, the words “moderate” and “marked” are not defined in the rating schedule; rather, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6 (2017). Effective February 7, 2021, Diagnostic Code 5271 defines marked limited motion of the ankle as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. See 38 C.F.R. § 4.71, Plate II. An October 2012 private report of consultation and examination notes right lower leg and ankle pain that is moderate and constant in varying degrees. The private examiner did not note right ankle range of motion. As a preliminary matter, the Board notes that although the Veteran presented for VA examinations in November 2012 and July 2013, these examinations were not fully compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. at 26, 33 (2017). However, the reports do contain some relevant findings that are included herein. The November 2012 VA examination revealed right ankle plantar flexion to 30 degrees and dorsiflexion to 20 degrees or greater. The Veteran was able to perform repetitive use testing without additional loss of range of motion. No ankylosis of the ankle, subtalar, and/or tarsal joint was found on examination. Similarly, no shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus or talus, and/or talectomy were found on examination. The Veteran denied flare-ups. The July 2013 VA examination reflects the Veteran reported flare-ups described as difficulty walking when the pain is severe. Range of motion testing revealed right ankle plantar flexion to 10 degrees and dorsiflexion to 5 degrees. The Veteran was able to perform repetitive use testing without additional loss of range of motion. No ankylosis of the ankle, subtalar, and/or tarsal joint was found on examination. Similarly, no shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus or talus, and/or talectomy were found on examination. In a July 2016 VA treatment record, the Veteran reported an increase in physical pain related to his right foot, ankle, and leg that required him to stop his daily walks. A February 2017 private treatment record notes bilateral leg pain. A January 2018 VA treatment record notes right ankle range of motion is severely limited with tenderness on palpation around medial or lateral malleolus but no tenderness on palpation of the plantar fascia. An April 2018 VA treatment record notes ankle pain as an active problem. A June 2019 VA treatment record notes ankle pain. In September 2018 the Board remanded the appeal for an examination to assess the current nature and severity of the Veteran’s ankle. In addition to reviewing the orthopedic manifestations, the examiner was also to assess whether there was any associated neurological impairment or loss of use the lower extremities. In compliance with the Board’s remand directives, a VA examination was obtained in July 2019. During the examination, the Veteran reported pain, stiffness, and weakness of the right ankle. Regarding functional loss or impairment, the Veteran reported difficulty standing and walking. Range of motion testing revealed dorsiflexion to 10 degrees and plantar flexion to 10 degrees. Repetitive-use testing resulted in plantar flexion to 5 degrees and dorsiflexion to 5 degrees. The examiner indicated that pain, fatigue, and weakness significantly limit functional ability with repeated use over a period time consistent with dorsiflexion and plantar flexion limited to 5 degrees. No right ankle ankylosis, shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus or talus, and/or talectomy were found on examination. Associated neurological impairment was not indicated. An August 2019 diagnostic report notes old healed fracture of the distal fibula, calcific densities adjacent to the top of the medial malleolus, and no acute bone or joint abnormalities. After a review of the evidentiary record, the Board finds the preponderance of the evidence weighs against finding entitlement to a rating in excess of 20 percent for a right ankle disability. As the Veteran is in receipt of the highest schedular rating for limited motion of the ankle, there is no basis to award a higher rating under Diagnostic Code 5271. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher or separate rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The Veteran has not been diagnosed with ankylosis at any time. See 38 C.F.R. § 4.71a, Diagnostic Code 5270. There also is no evidence of a malunion to the os calcis or astralgus so as to warrant a higher or separate evaluation under 38 C.F.R. § 4.71a, Diagnostic Codes 5273 or 5274, respectively. Additionally, Diagnostic Code 5284 (for “other foot injuries”) is not applicable because this diagnostic code pertains to the feet, while the service-connected disability is of the ankle. As the Veteran already has the maximum schedular disability rating, the appeal is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 2. Entitlement to TDIU is denied. The Veteran contends his service-connected disabilities preclude him from securing or following substantially gainful employment. As a preliminary matter, the Board notes that, in compliance with the Board’s prior remand directives, the Veteran was provided a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran did not complete the form. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. Section 4.16(a) provides a rating hurdle for schedular consideration of a TDIU. Where the schedular rating is less than total, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply 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. Id. The noneconomic component requires a determination as to a veteran’s ability to secure and follow such employment. Id. Attention should be given to the veteran’s history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.; see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Factors such as age or impairment by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. The appeal period begins October 22, 2011, including a one-year look back, which is the same period of the increased rating claim for the right ankle disability on appeal. Prior to July 30, 2019, the Veteran is service-connected for: post-traumatic arthritis from fracture, right fibula and posterior malleolar status post reduction (20 percent from September 12, 2005); lumbar spine degenerative joint disease and spinal stenosis associated with post-traumatic arthritis from fracture, right fibula and posterior malleolar status post reduction (20 percent from October 22, 2012); migraine headaches associated with cervical strain (30 percent from October 22, 2012); cervical strain associated with post-traumatic arthritis from fracture, right fibula and posterior malleolar status post reduction (20 percent prior to July 31, 2019); right knee degenerative joint disease associated with post-traumatic arthritis from fracture, right fibula and posterior malleolar status post reduction (10 percent from October 22, 2012); and left knee degenerative joint disease associated with post-traumatic arthritis from fracture, right fibula and posterior malleolar status post reduction (10 percent from October 22, 2012). From October 22, 2012 to July 30, 2019, the Veteran is in receipt of a 70 percent combined rating. Thus, he met the schedular criteria for a TDIU when considering bilateral factor and disabilities resulting from a common etiology. See 38 C.F.R. § 4.16(a). From July 30, 2019, he is in receipt of a 100 percent combined rating and for reasons discussed below, any question of a TDIU rating has been rendered moot for this period. Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of Compensation for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). Consequently, the only remaining question in this case is whether there is evidence of unemployability due to his service-connected disabilities such that referral for further consideration is warranted under 38 C.F.R. § 4.16 (b). Based on the evidence of record, the Board finds that referral is not warranted. The Veteran’s DD Form 214 reflects a military occupational specialty of medical assistant. A September 2005 VA treatment record indicates the Veteran has a college degree. A November 2018 VA treatment record notes the Veteran retired in 2006 from the North Fork Southern Railway. He reported no difficulties with employment and indicated he enjoyed his job. An October 2012 private examination notes that, for reasons of military related unpredictable manifestations of posttraumatic stress disorder (PTSD), orthopedic and neurological limitations of the lower extremities including partial loss of use thereof, the Veteran is individually unemployable. The private diagnostic consultant, P.Y., Doctor of Chiropractic (DC), noted his right ankle pain is intensified substantially by standing or walking. The Veteran’s bilateral knee disabilities swell occasionally and give out at random causing near falls. P.Y., DC also indicated he has partial loss of use and function of the lower extremities due to these conditions because he can walk less than two hundred feet without having to stop, get out of weight bearing, and rest. He also noted lumbar, thoracic, and cervical spine limitation of motion and pain. He indicated his headaches occur three or more times a week and last for a few to twelve hours. Finally, P.Y., DC noted insomnia, anxiety, depression, memory issues, nightmares, anger, and rage due to a provisional diagnosis of PTSD. A November 2012 VA examiner indicated the Veteran’s right ankle condition does not impact his ability to work. A February 2013 VA examiner indicated the Veteran’s back disability impacts his ability to work as he is unable to perform heavy lifting or repetitive bending at the waist. In contrast, the February 2013 VA examiner indicated his cervical spine condition and bilateral knee conditions do not impact his ability to work. The February 2013 VA examiner indicated his migraine headaches do impact his ability to work as he would be absent from work when pain is severe. A July 2013 VA examiner indicated his right ankle condition would impact his ability to work as he is unable to walk significant distances or stand for prolonged times due to ankle pain. The examiner noted no restrictions to ‘sedentary work.’ After a review of the evidentiary record, the Board does not find that the Veteran’s service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment prior to July 30, 2019. With respect to the economic component in Ray, the Board notes the Veteran was asked to provide a VA Form 21-8940 to provide information regarding his employment history, including income. The Veteran did not complete the form, and the record does not otherwise indicate his income. VA’s duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A veteran must cooperate when he is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The failure to submit VA Form 21-8940 has precluded potentially relevant evidence regarding his income, employment and educational histories. With respect to the non-economic component discussed in Ray, while the evidence indicates that the Veteran’s service-connected disabilities impact his ability to perform certain physical functions, including standing and walking for prolonged periods and/or bending at the waist, the evidence does not indicate that the Veteran is unable to perform any occupational tasks. Indeed, while the evidence reflects that the Veteran may have some difficulty performing the physical duties of his prior employment for the railroad, the evidence does not indicate that he is precluded from obtaining or maintaining substantially gainful employment consistent with his educational and work history due to his service-connected disabilities alone. His back and ankle symptomatology may prevent him from performing occupational duties that involve strenuous physical labor or excessive walking; however, the evidence does not reflect that he would be unable to perform occupational duties in an unskilled or semi-skilled position that does not involve strenuous physical labor or excessive walking. To this point, the Board notes that the evidence of record indicates the Veteran retired without reported difficulties with his employment. In sum, the Board concludes that the evidence does not weigh in support of finding that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. Therefore, entitlement to a TDIU is not warranted for the period prior to July 30, 2019. As detailed above, a 100 percent combined rating is in effect from July 30, 2019. A grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s), including whether the award of TDIU would provide entitlement to SMC. See AB v. Brown, 6 Vet. App. 35 (1993); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991)(Entitlement to SMC is an “inferred issue” in the context of an increased rating claim); see Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). SMC may be warranted pursuant to 38 U.S.C. § 1114 (s) if a Veteran has a service-connected disability rated as 100 percent disabling and (1) has an additional service-connected disability or disabilities independently rated at 60 percent or more, or (2) by reason of such service-connected disability or disabilities is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). In Bradley, the Court held that a TDIU based on a single disability will satisfy the statutory requirement of a single disability with a total rating for the purposes of awarding SMC). In Buie, the Court held that an award of TDIU based on combined effects for multiple disabilities cannot be used to satisfy the requirement of a single disability rated as totally disabling. However, VA’s duty to maximize benefits requires VA to assess all of a claimant’s disabilities, regardless of the order in which they were service-connected, to determine whether any combination of disabilities establishes SMC under 38 U.S.C. § 1114. The Board finds that any question of a TDIU rating in this case has been rendered moot for the period beginning July 30, 2019 (when the 100 percent combined schedular disability rating began). This is because the assignment of a TDIU from July 30, 2019 would result in duplicate counting of disabilities. The Buie and Bradley exceptions to the rule that a 100 percent schedular disability rating moots a TDIU claim based on "less than total" rating do not apply in this case. See 38 C.F.R. § 4.16(a) (providing TDIU "where the schedular rating is less than total"). This case is distinguishable from both Bradley and Buie exceptions to the rule that a 100 percent combined schedular disability rating moots a TDIU. This case is distinguishable from Bradley because, here, the Veteran does not have a single disability rated less than 100 percent upon which TDIU is granted. Rather, he has a 100 percent combined rating based on multiple disabilities. Moreover, the Board does not find that any one of these disabilities would render him unemployable and warrant the assignment of TDIU on such single disability alone. As neither Bradley nor Buie is applicable, the question of entitlement to a TDIU rating has been rendered moot. To award a TDIU rating for the period beginning July 30, 2019 (when the 100 percent combined schedular disability rating began) would result in duplicate counting of disabilities. 38 C.F.R. § 4.14. As there is no basis for assignment of SMC under 38 U.S.C. § 1114(s), entitlement to TDIU is rendered moot. 3. Entitlement to SMC based on loss of use of both lower extremities is denied. The Veteran seeks SMC based on loss of use of both lower extremities. For the reasons that follow, the Board finds entitlement to SMC based on loss of use of both lower extremities is not warranted. Entitlement to SMC based on loss of use is provided for under 38 C.F.R. § 3.350(a). Under 38 C.F.R. § 3.50(a), SMC is available for loss or loss of use of one foot, loss or loss of use of one hand, loss of use of both buttocks, loss of one or more creative organ(s), blindness in one eye, deafness in both ears, complete organic aphonia (loss of voice), loss of 25 percent or more of the tissue from a single breast or both breasts in combination, and when breast tissue has been subjected to radiation treatment. 38 C.F.R.§ 3.350(a)(2) defines loss of use of hand or foot as when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic. This determination will be made on the basis of the actual remaining function, whether the acts of balancing, propulsion, etc., in the case of the foot could be accomplished equally well by an amputation stump with prosthesis; for example: extremely unfavorable complete ankylosis of the knee, or complete ankylosis of 2 major joints of an extremity, or shortening of the lower extremity of 3.5 inches or more and/or complete paralysis of the external popliteal nerve and consequent foot drop, accompanied by organic changes like trophic or circulatory disturbances. In this case, the medical evidence of record does not demonstrate loss or loss of use of the lower extremities.November 2012, July 2013, and July 2019 VA ankle examination reports reflect difficulty walking and constant use of a cane but indicate that there is not functional impairment of an extremity such that no effective functions remains other than that which would be equally well served by an amputation with prosthesis. The February 2013 and July 2019 VA knee examination reports also show that there is not functional impairment of an extremity such that no effective functions remains other than that which would be equally well served by an amputation with prosthesis. These examinations further indicate no ankylosis. A July 2019 VA peripheral nerves condition examination report similarly reflects no complete paralysis of the lower extremity nerves, including the external popliteal nerve, and indicates that there is not functional impairment of an extremity such that no effective functions remans other than that which would be equally well served by an amputation with prosthesis. Thus, the Board finds that the preponderance of the evidence is against finding that the Veteran is shown to have remaining effective function of each lower extremity that goes beyond what would be equally well served by an amputation with prosthesis. See, e.g., July 2019 VA peripheral nerves condition examination. Accordingly, the criteria for special monthly compensation based on loss of use are not met. 38 C.F.R. § 3.350. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.Aoughsten, 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.