Citation Nr: 21012771 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-62 016 DATE: March 5, 2021 ORDER The issue of an increased rating for loss of use of left foot with peroneal palsy, shortening, with nonunion of tibia, fibula, is dismissed. Prior to February 8, 2017, an increased rating of 20 percent, but no higher, for the service-connected degenerative arthritis of the left ankle, is granted. Effective February 8, 2017, a rating in excess of 20 percent for the service-connected degenerative arthritis of the left ankle, is denied. A total disability rating based on individual unemployability (TDIU) is granted. REMANDED The issue of an increased rating for a chronic lumbar strain, currently rated as 10 percent disabling prior to April 5, 2017, and rated as 20 percent disabling effective April 5, 2017, is remanded. The issue of a temporary total evaluation because of treatment for a service-connected disability requiring convalescence, is remanded. The issue of a higher initial rating for peripheral neuropathy of the right lower extremity, currently rated as 20 percent disabling, is remanded. FINDINGS OF FACT 1. On June 22, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, that a withdrawal of the issue of an increased rating for loss of use of left foot with peroneal palsy, shortening, with nonunion of tibia, fibula, was requested. 2. Prior to February 8, 2017, the Veteran’s service-connected degenerative arthritis of the left ankle was manifested by an overall disability picture that more nearly approximated traumatic arthritis characterized by marked limitation of motion due to pain. It is not manifested by ankylosis. 3. Effective February 8, 2017, the Veteran’s service-connected degenerative arthritis of the left ankle is not manifested by ankylosis. 4. The preponderance of the evidence reflects that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of an increased rating for loss of use of left foot with peroneal palsy, shortening, with nonunion of tibia, fibula, by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. Prior to February 8, 2017, the criteria for the assignment of a 20 percent disability rating, but no higher, for the Veteran’s service-connected degenerative arthritis of the left ankle are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.40, 4.71a, Diagnostic Codes 5270-5271. 3. Effective February 8, 2017, the criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran’s service-connected degenerative arthritis of the left ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.40, 4.71a, Diagnostic Codes 5270-5271. 4. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to May 1972. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of an increased rating for loss of use of left foot with peroneal palsy, shortening, with nonunion of tibia, fibula, has been withdrawn. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant has withdrawn the issue of an increased rating for loss of use of left foot with peroneal palsy, shortening, with nonunion of tibia, fibula. The Board recognizes that an oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). In this case, the undersigned Veterans Law Judge thoroughly addressed the issue in a pre-hearing conference. During the June 2020 Board hearing, the Veteran reiterated his satisfaction with his current 40 percent rating. He was specifically asked whether his wished to withdraw the issue, and he responded in the affirmative. The Board finds that all three criteria have been met for the withdrawal of the issue. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Increased Rating Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, however, an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Prior to February 8, 2017, an increased rating of 20 percent, but no higher, for the service-connected degenerative arthritis of the left ankle, is granted. The Veteran’s service-connected left ankle disability has been rated by the RO under the provisions of Diagnostic Code 5271. Under this regulatory provision, a rating of 10 percent is warranted for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). A rating of 20 percent is warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). Normal or full range of motion for the ankle is dorsiflexion (extension) from zero to 20 degrees and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. In the October 2012 rating decision, the RO denied an increased rating for the Veteran’s left ankle disability. It was rated as 10 percent disabling. The RO issued a July 2017 rating decision in which it increased the rating to 20 percent effective February 8, 2017, which was the date it received the Veteran’s Intent to File and a VA Form 21-526Z. The Veteran underwent a VA examination in March 2012. He reported severe pain in his left ankle that he described as a sharp, throbbing ache. He reported that with flare-ups, pain rose from 4-5 to 9-10. He stated that pain is somewhat alleviated by Vicodin, but that its effectiveness ranges from fair to poor. He stated that flare-ups are brought on by prolonged standing (over one hour), prolonged walking (over 100 yards), and cold or damp weather. Upon examination, the Veteran achieved 40 degrees of plantar flexion (45 degrees is normal). He was able to achieve 10 degrees of plantar dorsiflexion (extension) (20 degrees is normal). There was no objective evidence of painful motion. The Veteran was able to perform repetitive use testing without any additional loss of motion. There was no ankylosis. The examiner was unable to render an opinion regarding additional limitation of motion during a flare-up, without resorting to speculation. The examination preceded Correia v. McDonald, 28 Vet. App. 158 (2016). Although it is apparent that the Veteran was not experiencing a flare-up of his right ankle during the March 2012 examination, the Veteran is competent to report observable symptoms such as pain, and an inability to stand or walk for prolonged periods. There is no reason to doubt his credibility in this regard. As such, given the evidence of impaired ambulation, difficulty standing, and flare-ups of the left ankle, with symptoms including constant pain and limitation of motion, the Veteran’s overall disability picture more closely approximates marked limitation of motion. Consequently, prior to February 8, 2017, a rating of 20 percent, but no higher is warranted. The assignment of a 20 percent disability rating for the Veteran’s left ankle disability is the maximum disability rating allowed under Diagnostic Code 5271 for limited motion of the left ankle. Diagnostic Code 5270, which evaluates ankylosis of the ankle, provides a rating in excess of 20 percent; however, the March 2012 VA examiner found that the Veteran did not have ankylosis of the left ankle. The Veteran underwent VA examinations in in January 2016 and April 2017. Both examiners stated that there was no ankylosis. The Veteran has not submitted any evidence showing left ankle ankylosis. Therefore, a disability rating under Diagnostic Code 5270 for the Veteran’s left ankle is not available. Considering the forgoing, the Veteran is not entitled to a disability rating exceeding 20 percent for his left ankle disability. Effective February 8, 2017, a rating in excess of 20 percent for the service-connected degenerative arthritis of the left ankle is denied. As noted above, the 20 percent rating is the maximum rating under Diagnostic Code 5271. In order to warrant a rating in excess of 20 percent, the Veteran’s disability must be manifested by ankylosis, and rated under Diagnostic Code 5270. The Veteran underwent VA examinations in March 2012, January 2016, and April 2017. All three examiners stated that there was no ankylosis. The Veteran has not submitted any evidence showing left ankle ankylosis. Therefore, a disability rating under Diagnostic Code 5270 for the Veteran’s left ankle is not available. Considering the forgoing, the Veteran is not entitled to a disability rating exceeding 20 percent for his left ankle disability. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Because there is no evidence of ankylosis, the Veteran’s ankle disability is rated at the maximum schedular evaluation, under both the older and newer criteria. Thus, the change in the musculoskeletal disability codes has no bearing on the rating for the Veteran’s ankle disability. Entitlement to a TDIU is granted. In order to establish a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Consequently, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341 (a), 4.19 (2016). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Veteran’s service-connected disabilities include ischemic heart disease, evaluated as 60 percent disabling; loss of use of left foot with peroneal palsy, shortening, with nonunion of tibia, fibula with healed osteomyelitis, evaluated as 40 percent disabling; diabetes mellitus, evaluated as 20 percent disabling; peripheral neuropathy of the right lower extremity, evaluated as 20 percent disabling; degenerative arthritis of the left ankle, evaluated as 20 percent disabling; a chronic lumbar strain, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; bilateral hearing loss, evaluated as 0 percent disabling; and a scar on the left lower extremity, evaluated as 0 percent disabling. His combined rating is therefore 90 percent (this combined rating has been in effect since July 15, 2010). See 38 C.F.R. § 4.25. Thus, the Veteran meets the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). The Board, however, must still determine whether the Veteran’s service-connected disabilities result in impairment so severe that it is impossible to follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. Following a full and thorough review of the evidence of record, the Board concludes that the evidence is at least in equipoise as to whether the Veteran’s service connected disabilities cause the Veteran to be unable to secure or follow a substantially gainful occupation. The evidence includes an August 2011 correspondence from Michael Rivera-Weiss, M.D., in which he stated that due to chronic pain (from the Veteran’s bilateral lower extremity, left ankle arthritis, and right foot disability) the Veteran is unable to acquire or sustain gainful employment. Other evidence includes the Veteran’s June 2020 Board hearing testimony in which he stated that he wanted to continue to work, but that he retired early (in 2010) due to service-connected disabilities. He stated that he could not walk without slipping and sliding due to foot drop. He also stated that chronic pain necessitated that he take Vicodin, but that he was not able to function properly when taking it. In giving the benefit of the doubt to the Veteran, the evidence reflects that his service-connected disabilities alone render him unable to obtain and retain substantially gainful employment. As such, the Veteran’s claim for a TDIU is granted. REASONS FOR REMAND The issue of an increased rating for a chronic lumbar strain, currently rated as 10 percent disabling prior to April 5, 2017, and rated as 20 percent disabling effective April 5, 2017, is remanded. In the October 2012 rating decision, to RO denied an increased rating for a chronic lumbar strain. The disability was rated as 10 percent disabling. The RO issued a November 2017 rating decision in which it increased the rating to 20 percent effective April 5, 2017. Consequently, there are two distinct time periods to consider. The Veteran’s most recent VA examination took place nearly four years ago, in April 2017. Although a new examination is not required simply because of the time which has passed since the last examination, VA’s General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Although an increase in severity since the most recent examination is unclear, the Board notes that in the Veteran’s November 2017 substantive appeal, he argued that the VA examiner failed to address flare-ups and his inability to work during those flare-ups. The April 2017 examiner stated that the Veteran did not report flare-ups. Either the November 2017 was in error (thereby rendering the examination report inadequate) or the Veteran’s disability increased in severity, to include flare-ups that were non-existent at the time of the April 2017 VA examination. In either case, the April 2017 VA examination is not probative in determining the current severity of the Veteran’s disability. The Board finds that a new examination is warranted to determine the current severity of the Veteran’s disability. The issue of a temporary total evaluation because of treatment for a service-connected disability requiring convalescence, is remanded. The RO has denied the Veteran’s claim for a temporary total rating on the strength of a May 2014 VA opinion in which the examiner opined that it is less likely than not that the Veteran’s February 2013 lumbar fusion, discectomy and decompression surgery was necessitated by his service connected lumbar strain. She stated that the need for surgery arose due to usual risk factors, such as age, heredity, obesity, and smoking. The Veteran disputed the May 2014 examiner’s opinion in a November 2016 correspondence. In it, he appears to attribute his lumbar fusion surgery to a limb length discrepancy. Further, he submitted medical treatises that support his contentions. The Veteran’s service-connected disabilities include loss of use of left foot with peroneal palsy, shortening, with nonunion of tibia, fibula with healed osteomyelitis. A temporary total rating would be warranted if the surgery was required due to the nonunion of tibia and fibula resulting in a leg length discrepancy. An opinion is needed to determine the etiology of the Veteran’s February 2013 lumbar fusion, discectomy and decompression surgery. The issue of a higher initial rating for peripheral neuropathy, right lower extremity, currently rated as 20 percent disabling, is remanded. The Veteran has undergone VA examinations in March 2012, January 2016, and April 2017; however, none of these examination reports address the complaints voiced by the Veteran at his June 2020 Board hearing. At his hearing, the Veteran stated that even before he retired in 2010, his sciatic nerve pain was causing difficulty walking. He reported that he had foot drop which caused him to slip and slide. He reported that he was in a pain management course and was given Vicodin. The Board recognizes that the Veteran is service connected for left foot drop, and that the Veteran may have merely been confusing the symptoms in the two extremities. However, his representative referenced the fact that as early as 2012, his doctor told him that he was unable to work due to peripheral neuropathy and foot drop. An undated correspondence (received in 2011) reflects that James R. Bavis, Jr., M.D., stated that the Veteran’s peripheral neuropathy is causing foot drop and considerable disability. Additionally, a June 2011 treatment report from Dr. Bavis reflects that EMG/nerve-conduction studies showed “severe bilateral neuropathy.” This is in contrast to the VA examination reports in which the examiner characterized the Veteran’s right lower extremity neuropathy as mild or moderate. The fact that the previous VA examination reports fail to address the Veteran’s reported symptoms and the private examiner’s treatment reports renders the examinations reports somewhat inadequate. The Board finds that a new VA examination is warranted to determine the severity of the Veteran’s peripheral neuropathy of the right lower extremity. The examination should include EMG/nerve-conduction studies, and the results of the study should be reconciled with the findings of Dr. Bavis. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his service-connected lumbar strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should note that the Veteran reported flare-ups in his November 2017 substantive appeal. Additionally, the examiner should opine whether it is at least as likely as not that the Veteran’s February 2013 lumbar fusion, diskectomy and decompression surgery was necessitated by either (1) his service connected lumbar strain, or (2) his service connected loss of use of left foot with peroneal palsy, shortening, with nonunion of tibia, fibula with healed osteomyelitis. The examiner should note the evidence cited in the Veteran’s November 2016 correspondence. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected peripheral neuropathy of the right lower extremity. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (Continued on next page) The examination should include EMG/nerve-conduction studies, and the results of the study should be reconciled with the findings of Dr. Bavis. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.