Citation Nr: 21011881 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-34 408A DATE: March 2, 2021 ORDER Entitlement to an earlier effective date of March 1, 2011 for the 10 percent rating assigned for left knee patellar chondromalacia is granted. Entitlement to an earlier effective date of March 1, 2011 for the 10 percent rating assigned for right knee recurring patellofemoral pain syndrome is granted. Entitlement to an earlier effective date of March 1, 2011 for the 10 percent rating assigned for symptomatic recurring left ankle sprain is granted. Entitlement to an earlier effective date of March 1, 2011 for the 10 percent rating assigned for symptomatic recurring right ankle sprain is granted. Entitlement to an earlier effective date of March 1, 2011 for the 10 percent rating assigned for right foot symptomatic plantar fascial fibromatosis is granted. Entitlement to an earlier effective date of March 1, 2011 for the 10 percent rating assigned for left hand cyst (long finger involvement) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a higher initial rating for left knee patellar chondromalacia, rated as 10 percent disabling, is remanded. Entitlement to a higher initial rating for right knee patellofemoral pain syndrome, rated as 10 percent disabling, is remanded. Entitlement to a higher initial rating for symptomatic recurring left ankle sprain, rated as 10 percent disabling prior to July 13, 2018 and 20 percent disabling thereafter, is remanded. Entitlement to a higher initial rating for symptomatic recurring right ankle sprain, rated as 10 percent disabling prior to July 13, 2018 and 20 percent disabling thereafter, is remanded. Entitlement to a higher initial rating for recurring left Achilles tendonitis, with myofascial pain gastroc/soleus muscle group, rated as noncompensable, is remanded. Entitlement to a higher initial rating for recurring right Achilles tendonitis, with myofascial pain gastroc/soleus muscle group, rated as noncompensable, is remanded. Entitlement to a higher initial rating for right foot symptomatic plantar fascial fibromatosis, rated as 10 percent disabling, is remanded. Entitlement to a higher initial rating for left hand cyst (long finger involvement), rated as 10 percent disabling, is remanded. FINDINGS OF FACT 1. The Veteran’s January 2012 increased rating claim for his service-connected bilateral knee, bilateral ankle, bilateral Achilles, right foot, and left hand disabilities was received in the appeal period of the October 2011 rating decision that initially granted service connection for the disabilities and constitutes new and material evidence with respect to the initial ratings assigned for the disabilities by that decision. 2. The painful motion that warranted the assignment of 10 percent ratings for the Veteran’s knees, ankles, right foot, and left hand has at least as likely as not been present since the date of his release from active service. 3. The Veteran has a combined rating of 90 percent with one disability ratable as 40 percent or more disabling, and it is at least as likely as not that his service-connected disabilities prevent him from engaging in substantially gainful employment for which his education and occupational history would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of March 1, 2011 for the 10 percent rating assigned for left knee patellar chondromalacia have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a. 2. The criteria for an earlier effective date of March 1, 2011 for the 10 percent rating assigned for right knee recurring patellofemoral pain syndrome have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a. 3. The criteria for an earlier effective date of March 1, 2011 for the 10 percent rating assigned for symptomatic recurring left ankle sprain have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a. 4. The criteria for an earlier effective date of March 1, 2011 for the 10 percent rating assigned for symptomatic recurring right ankle sprain have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a. 5. The criteria for an earlier effective date of March 1, 2011 for the 10 percent rating assigned for right foot symptomatic plantar fascial fibromatosis have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a. 6. The criteria for an earlier effective date of March 1, 2011 for the 10 percent rating assigned for left hand cyst (long finger involvement) have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a. 7. The criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1987 to February 2011. These matters comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina; however, the Board notes the January 2012 increased rating claim that led to the December 2012 rating decision was filed in the appeal period of an October 2011 rating decision that initially awarded service connection for the disabilities encompassed by this appeal. In this scenario, VA is required to address whether the increased rating claim constitutes new and material evidence relating back to the previous decision. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Here, the Board finds the Veteran’s January 2012 increased rating claim does indeed constitute new and material evidence with regard to the initial ratings assigned for his service-connected bilateral knee, bilateral ankle, bilateral Achilles, right foot, and left hand disabilities by the October 2011 rating decision, as the claim was subsequently followed by a lengthy written statement from the Veteran detailing the symptoms of his disabilities, which was also received in the appeal period of the October 2011 rating decision; therefore, the Board has recharacterized the issues on appeal to clearly reflect that they relate to the initial ratings assigned for the Veteran’s service-connected disabilities rather than a subsequently filed increased rating claim. The Veteran appeared at a hearing before the undersigned in March 2017. A transcript of the hearing is of record. In April 2018, the Board remanded the Veteran’s appeal for further development, which will be discussed in more detail as relevant below. Earlier Effective Dates As previously noted, the Board finds the Veteran’s January 2012 increased rating claim for his service-connected bilateral knee, bilateral ankle, bilateral Achilles, right foot, and left hand disabilities constitutes new and material evidence with respect to the initial ratings assigned for the disabilities by the aforementioned October 2011 rating decision. Subsequent to the Board’s April 2018 remand, the Agency of Original Jurisdiction (AOJ) issued a September 2019 rating decision that awarded separate 10 percent ratings for the knees, ankles, right foot, and left hand in accordance with 38 C.F.R. § 4.59, all of which were effective January 19, 2012, the date of the Veteran’s increased rating claim. The record establishes the Veteran has experienced knee, ankle, right foot, and left hand pain since his separation from active service. Thus, the Board finds an earlier effective date of March 1, 2011 is warranted for the 10 percent ratings assigned for these disabilities. The issues of entitlement to higher initial ratings will be addressed in the REMAND section below. TDIU TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran has a combined 90 percent rating with his service-connected post-traumatic stress disorder (PTSD) being rated as 50 percent disabling; therefore, he meets the schedular percentage requirements for TDIU outlined in 38 C.F.R. § 4.16(a). The record establishes the Veteran has not worked since his separation from active service in February 2011 despite his participation in vocational rehabilitation through VA’s Veteran Readiness and Employment program. In December 2019 and January 2020, the Veteran submitted opinions from a physician and a vocational expert discussing the combined effects of his service-connected disabilities in the context of his ability to secure and maintain substantially gainful employment for which his education and occupational history would otherwise qualify him. Both experts concluded the combined effect of the Veteran’s service-connected disabilities at least as likely as not prevent him engaging in substantially gainful employment for which his education and occupational history would otherwise qualify him, noting the combination of psychiatric and musculoskeletal impairment prevent him from being able to perform several of the mental and physical tasks required in jobs that align with his education and occupational history. The Board finds these opinions are consistent with other evidence of record which shows the Veteran has gone to great lengths to obtain employment with federal agencies but has been unable to secure these positions due primarily to his physical limitations resulting from his multiple service-connected joint disabilities. The Veteran’s ability to function in an occupational environment is further impaired by the multitude of symptoms stemming from his service-connected PTSD, to include depressed mood; anxiety; suspiciousness; chronic sleep impairment; memory loss; flattened affect; disturbances of mood and motivation; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The AOJ appears to have denied TDIU based solely on a finding that the Veteran’s participation in a master’s degree program suggests he is able to secure and maintain substantially gainful employment, but, as previously noted, the Veteran’s attempts to obtain such employment have been unsuccessful because of the limitations imposed by his service-connected disabilities. The Veteran has acknowledged he is pursuing a master’s degree but has explained that he is only taking one course at a time and has found a program that permits him to engage with small groups, most of which include other veterans, to minimize the effects of his PTSD symptomatology. The Board finds it unlikely these types of accommodations would be available to the Veteran in the open job market, and, even if they were, they would most likely support a finding of marginal employment based on a protected environment. 38 C.F.R. § 4.16(a). The Board cannot deny TDIU without producing evidence, as distinguished from mere conjecture, showing the claimant can perform work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In this case, the evidence shows a once high-functioning individual who has gone to great lengths to obtain employment after his military career but has been unable to do so due to the limitations imposed by his service-connected disabilities. Thus, it is nothing more than conjecture to state the Veteran’s limited participation in a master’s degree program is evidence of his ability to secure and maintain substantially gainful employment when there is substantial evidence to the contrary. As a result, the Board finds TDIU is warranted in this case because the evidence establishes that it is at least as likely as not that the Veteran’s service-connected disabilities prevent him from engaging in substantially gainful employment for which his education and occupational history would otherwise qualify him. The AOJ will assign the effective date in the first instance to ensure the Veteran is afforded due process in light of the issues being remanded for further development. REASONS FOR REMAND In April 2018, the Board remanded the issues on appeal so the Veteran could be scheduled for new examinations to assess the functional impairment resulting from his service-connected bilateral knee, bilateral ankle, bilateral Achilles, right foot, and left hand disabilities. The AOJ scheduled the Veteran for new examinations in July 2018, as directed. Unfortunately, the Board finds the July 2018 VA examination reports are inadequate to make an informed decision on the Veteran’s appeal of the ratings assigned for his service-connected bilateral knee, bilateral ankle, bilateral Achilles, right foot, and left hand disabilities. The July 2018 VA examiner reported he could not provide an estimate of additional range of motion loss for the Veteran’s knees or left hand during flare-ups without resorting to speculation because the Veteran was not experiencing a flare-up at the time of the examination, noting “[a]ccurate measurements of the range of motion must be obtained at the time of increased pain, weakness, fatigue or incoordination”, but there is no indication the examiner considered the Veteran’s lay reports in this regard as required under the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board acknowledges the July 2018 VA examiner reported the Veteran does not experience ankle flare-ups, but this is inconsistent with the Veteran’s lay reports throughout the appeal period and during his previous examination; therefore, the ratings assigned for the Veteran’s bilateral ankle and Achilles disabilities must also be remanded for further clarification. Additionally, the Board notes the AOJ’s characterization of the Veteran’s bilateral Achilles disabilities appears to encompass the gastrocnemius and soleus muscle group, which is specifically listed in Diagnostic Code 5311, relating to Group XI muscle injuries. See 38 C.F.R. § 4.73. Yet, there is no indication the AOJ has developed evidence or even considered whether ratings are warranted under Diagnostic Code 5311 with the Veteran’s disabilities being rated as noncompensable by analogy under Diagnostic Code 5024. Thus, the Board finds the Veteran should also be scheduled for a muscle injury examination to determine whether a compensable rating is potentially warranted under an alternate diagnostic code. Similarly, with regard to the Veteran’s appeal of the rating assigned for his service-connected right foot disability, the Board finds recent changes to 38 C.F.R. § 4.71a, effective February 7, 2021, require additional development as to whether plantar fascial fibromatosis is more properly rated under the new Diagnostic Code 5269, relating to plantar fasciitis, when compared with Diagnostic Code 5284, relating to foot injuries. See 85 Fed. Reg. 76453 (Nov. 30, 2020); see also 86 Fed. Reg. 8142 (Feb. 4, 2021) (changing the new diagnostic code for plantar fasciitis from Diagnostic Code 5285 to Diagnostic Code 5269). The matters are REMANDED for the following action: 1. Schedule the Veteran for new examinations to assess the severity of his service-connected bilateral knee, bilateral ankle, right foot, and left hand disabilities. The selected examiner should conduct all indicated tests and studies, to include range of motion testing where applicable. The joints in question, as well as any paired joint, should be tested in both active and passive motion and in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. If the examiner determines the Veteran does not presently experience flare-ups, he or she must address the approximate date the Veteran’s flare-ups ceased, to the extent possible based on the available evidence, as the Veteran has clearly reported flare-ups of the disabilities on appeal during the applicable rating period, which commenced in March 2011. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time, to include retrospectively, to the extent possible based on the available evidence, if it is determined the Veteran does not currently experience flare-ups. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page)   Specifically, with regard to the Veteran’s right foot symptomatic plantar fascial fibromatosis, the examiner is also asked to address whether this disability is more analogous to plantar fasciitis, as contemplated by new Diagnostic Code 5269, or more consistent with a generalized foot injury, as contemplated by Diagnostic Code 5284, with the more applicable/favorable diagnostic code being applied from February 7, 2021 moving forward. 2. Schedule the Veteran for a muscle injury examination to assess whether his service-connected bilateral “Achilles tendonitis, with myofascial pain gastroc/soleus muscle group” should be rated under the Schedule of Ratings for Muscle Injuries, to include, but not limited to, Diagnostic Code 5311, as opposed to under Diagnostic Code 5024. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.