Citation Nr: 21013278 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-03 620 DATE: March 9, 2021 ORDER Entitlement to service connection for benign neck neuroma claimed as due to exposure to ionizing radiation is denied. Entitlement to service connection for malignant schwannoma (brain tumor) claimed as due to exposure to ionizing radiation is denied. Entitlement to a rating in excess of 20 percent for degenerative, traumatic arthritis of the bilateral ankles is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The evidence is insufficient to show that the Veteran’s neck neuroma is related to service, to include as due to exposure to ionizing radiation. 2. The evidence is insufficient to show that the Veteran’s malignant schwannoma (brain tumor) is related to service, to include as due to exposure to ionizing radiation. 3. For the entire appeal period, the Veteran’s bilateral ankle arthritis manifested in no worse than painful motion or moderate limitation of motion 4. The evidence is insufficient does not show that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for benign neck neuroma claimed as due to exposure to ionizing radiation have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. 2. The criteria for service connection for malignant schwannoma (brain tumor) claimed as due to exposure to ionizing radiation have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. 3. The criteria for a rating in excess of 20 percent for degenerative, traumatic arthritis of the bilateral ankles have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs), 5003, 5010, 5271. 4. The criteria TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.314, 3.321, 3.340, 4.16 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from February 1970 to November 1975. In October 2020, the Veteran was advised that the Veterans Law Judge (VLJ) who conducted the August 2016 Travel Board hearing was no longer employed by the Board. He was afforded an opportunity to testify at another hearing but declined. Thus, the case has been reassigned to the undersigned VLJ. Service Connection 1. Entitlement to service connection for benign neck neuroma claimed as due to exposure to ionizing radiation. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). For certain chronic disorders, such as malignant tumors or tumors of the brain, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for conditions claimed to be due to exposure to radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). A “radiation-exposed veteran” is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. “Radiation-risk activity” is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946; service in which the service member was, as part of his or her official military duties, present during a total of at least 250 days before February 1, 1992, on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 Oak Ridge, Tennessee under certain specified conditions; or service performed in a capacity which , if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000 (42 U.S.C. 73841(14)). 38 C.F.R. § 3.309(b)(i), (ii) (2017). Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(2) include: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C. § 1112 (c)(2); 38 C.F.R. § 3.309(d). If a claimant does not qualify as a “radiation-exposed veteran” under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309 (d)(2), the Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the Veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, “radiogenic disease” means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin’s disease; (xxiii) Prostate cancer; and (xxiv) any other cancer. 38 C.F.R. § 3.311(b)(2). For the presumption to attach, bone cancer must become manifest within 30 years after exposure, leukemia may become manifest at any time after exposure, posterior subcapsular cataracts must become manifest become manifest 6 months or more after exposure, and other diseases specified in §3.311(b)(2) must become manifest 5 years or more after exposure. 38 C.F.R. § 3.311(b)(5). Under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311 (a)(2) (2016). In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the Veteran’s exposure to radiation. These records normally include but may not be limited to the Veteran’s Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the Veteran’s radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). Here, the Veteran asserts that his benign neck neuroma is related to radiation exposure in service. The evidence shows the Veteran has a history of neuroma which includes surgical removal. As there was a diagnosis during the appeal period, the issue that remains disputed is whether the Veteran’s condition is related to service. The preponderance of the evidence is against the claim. The evidence does not show, and the Veteran does not assert, that his neck neuroma had its onset in service. Service treatment records are silent for complaints of or treatment or treatment for a neck neuroma. As such, service connection on a direct basis is not warranted. Regarding the Veteran’s assertions regarding radiation exposure, the Veteran’s reported duties are not “radiation-risk activity” within the meaning of 38 C.F.R. § 3.309(d)(3)(ii). In addition, benign neck neuroma is not a radiogenic disease. As such, the special development procedures of 38 C.F.R. § 3.311 are not required, and the presumptive service connection based on radiation exposure does not apply. A March 2015 memorandum from the Department of Navy detailed the Veteran’s history of service-incurred occurred occupational exposure to ionizing radiation. In a June 2015 medical opinion, from Dr. P.C. – Director of the Post 9/11 Environmental Health Program – opines that it is unlikely that the Veteran’s neuroma and/or malignant schwannoma can be attributed to radiation exposure while in military service. Dr. P.C. reasoned that, “The Health Physics Society, in their position statement PS010-2, Radiation Risk in Perspective, revised in July 2020, states that ‘in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against quantitative estimation of health risks below and individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources.’ The position statement goes on to say that ‘there is substantial and convincing scientific evidence for health risks following high-dose exposures. However, below 5-10 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent.’” For these reasons, Dr. P.C. concluded that the Veteran’s conditions were not related to ionizing radiation exposure in service. During the August 2016 hearing the Veteran reported that he served on a nuclear submarine for four and a half years and wore a radiation badge at all times. He denied ever being in a situation where it was determined that the level of exposure was problematic. The Board finds that the evidence insufficient to show that the Veteran’s neck neuroma is related to radiation exposure in service. The Board finds the June 2015 medical opinion from Dr. P.C. adequate and probative to the question at hand. Dr. P.C. possessed the necessary education, training, and expertise to provide the requested opinion. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, he provided a detailed rationale for the opinion based on the Veteran’s history and the medical literature. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Veteran was not afforded a VA examination because the evidence was insufficient to trigger an examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). In sum, entitlement to service connection for neck neuroma due to ionizing radiation is denied. As the preponderance of the evidence is against the Veteran’s claim, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for malignant schwannoma (brain tumor) claimed as due to exposure to ionizing radiation. The Veteran asserts that his malignant schwannoma (brain tumor) is related to exposure to ionizing radiation in service. The evidence shows that the Veteran was treated for a brain tumor in 2010. As the Veteran had a diagnosis during the appeal period, the issue that remains disputed is whether the condition had its onset in service, manifested to a compensable degree within one year of separation, or is related to ionizing radiation in service. The preponderance of the evidence is against the claim. The Veteran does not assert, and the evidence does not show, that his brain tumor had its onset in service. Service treatment records are silent for complaints of or treatment for brain tumor in service. Thus, service connection on a direct basis is not warranted. Similarly, presumptive service connection based on a chronic disability is not warranted. The evidence does not show – and the Veteran does not assert – that his brain tumor manifested to a compensable degree within one year of separation. See 38 C.F.R. §§ 3.307, 3.309. Specifically, the evidence shows that the Veteran’s condition did not manifest until 2010 – approximately 35 years after separation. As previously discussed, the preponderance of the evidence is also against a finding that the Veteran’s brain tumor is related to ionizing radiation. Although cancer of the brain is a radiogenic disease, a March 2015 memorandum from the Department of Navy detailed the Veteran’s history of service-incurred occurred occupational exposure to ionizing radiation. In a June 2015 medical opinion, from Dr. P.C. – Director of the Post 9/11 Environmental Health Program – opines that it is unlikely that the Veteran’s neuroma and/or malignant schwannoma can be attributed to radiation exposure while in military service. Dr. P.C. reasoned that, “The Health Physics Society, in their position statement PS010-2, Radiation Risk in Perspective, revised in July 2020, states that ‘in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against quantitative estimation of health risks below and individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources.’ The position statement goes on to say that ‘there is substantial and convincing scientific evidence for health risks following high-dose exposures. However, below 5-10 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent.’” For these reasons, Dr. P.C. concluded that the Veteran’s conditions were not related to ionizing radiation exposure in service. The Board finds Dr. P.C.’s opinion probative to the question at hand. See Nieves-Rodriguez, 22 Vet. App. at 295. The Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In support of his claim, the Veteran and his wife have submitted articles discussing the relationship between ionizing radiation and brain tumors. See May 2014 Correspondence; September 2013 Correspondence. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1). However, the articles submitted do not contain any information or analysis specific to the Veteran’s case, including the level of exposure he experienced. As such, the evidence is of limited probative value. The Veteran was not afforded a VA examination because the evidence was insufficient to trigger an examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). In sum, entitlement to service connection for malignant schwannoma (brain tumor), to include as due to exposure to ionizing radiation is denied. As the preponderance of the evidence is against the Veteran’s claim, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a rating in excess of 20 percent for degenerative, traumatic arthritis of the bilateral ankles. Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses – known as pyramiding – is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). Separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Currently, the Veteran’s ankle arthritis is evaluated under Diagnostic Code 5010 for traumatic arthritis. Diagnostic Code 5010 directs that the evaluation of arthritis be conducted under DC 5003, which states that degenerative arthritis established by X-ray findings, as is the case here, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5010. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application of each such major joint or group of joints to be combined not added under DC 5003. Diagnostic Code 5003 further states, “Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.” In the absence of limitation of motion, a 20 percent rating is assigned when x-ray evidence shows involvement of 2 or more major/minor joint groups with occasional incapacitation episodes, and a 10 percent rating is assigned when x-ray evidence shows involvement of 2 or more major/minor joint groups. Notably, effective February 7, 2021, the law for rating post-traumatic arthritis changed. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003). After February 7, 2021, Diagnostic Code 5010 provides that posttraumatic arthritis should be rated as limitation of motion, dislocation, or other specified instability under the affected joint. In addition, the new law also revised the rating schedule for Diagnostic Code 5271, which address limitation of motion of the ankle. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5271). Prior to February 7, 2021, DC 5271 provided a 10 percent rating is warranted for moderately limited motion of the ankle; and a 20 percent rating is warranted for markedly limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Separate compensable ratings may also be awarded if the ankle is ankylosed, has malunion of the os calcis or astragalus, or has had an astragalectomy. 38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274. Prior to February 7, 2021 the terms “moderate” and “marked” in the criteria under Diagnostic Code 5271 were not defined in the VA Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that decisions are equitable and just. 38 C.F.R. § 4.6. Terminology such as “moderate” and “marked” used by VA examiners and others, although an element of evidence to be considered by the Board, are not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. From February 7, 2021, Diagnostic Code 5271 provides that a 10 percent rating is assigned for moderate limitation (less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion), and a 20 percent rating is assigned for marked limited motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). Full range of motion of the ankle joint consists of 20 degrees dorsiflexion and 45 degrees plantar flexion. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Generally, when the law changes during the pendency of a claim, the law most favorable to the claimant must be applied. McGrath v. Gober, 14 Vet. App. 28, 34 (2000); see also Ervin v. Shinseki, 24 Vet. App. 318, 323 (2011), opinion corrected, 25 Vet. App. 178 (2012). As such, Board will consider the Veteran’s evaluation based on both the prior and the revised law. The Veteran asserts that his bilateral ankle arthritis is more disabling than reflected in his current 20 percent rating. The preponderance of the evidence is against the claim. The evidence shows that for the entire appeal period the Veteran’s ankle disability manifested in painful motion or no worse than moderate limitation of motion. During the January 2015 VA examination, the Veteran showed diagnoses of degenerative arthritis and traumatic arthritis. The Veteran reported increased pain during flare-ups but no additional limitation of functionality. The Veteran reported that flare-ups manifest in dull pain at a level of 4/10 and occur daily with ascending and descending steps lasting for a few minutes to 20 minutes. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Range of motion testing showed full range of motion. There was no limitation of motion with repetitive use testing. The Veteran showed full (5/5) muscle strength bilaterally with plantar flexion and dorsiflexion. There was no evidence of ankylosis or joint instability. During the August 2016 hearing, the Veteran reported that his ankle pain was severe and impacted his ability to work. He reported his ankle pain makes steps and ladders challenging. He further reported that the pain sometimes impacts his ability to stand and walk. He reported pain at a severity of 9/10. He reported that his ankle pain sometimes wakes him up at night but usually the pain is worse in the morning. He said he can only walk up to 5 blocks due to ankle pain. He reported he has fallen as a result of his ankles. His ankle pain is treated with braces and injections. March 2018 and March 2019 VA treatment records indicate the Veteran showed 5 degrees of dorsiflexion and 20 degrees of plantar flexion bilaterally. An August 2019 VA treatment note indicates the Veteran’s bilateral ankle joints showed smooth and pain-free range of motion although it was “somewhat limited.” There was some tenderness to palpation. The Veteran showed full (5/5) muscle strength with dorsiflexion and plantar flexion. During the June 2020 VA examination the Veteran reported worsening symptoms and ankle instability. Active and passive range of motion testing showed dorsiflexion limited to 10 degrees and plantar flexion limited to 35 degrees bilaterally. There was no additional limitation of motion with repetitive use testing. He reported difficulty with standing, walking, and climbing. Bilaterally, the Veteran showed full (5/5) muscle strength with plantar flexion and dorsiflexion. There was no muscle atrophy or ankylosis. There was no objective evidence of instability. There was no evidence of pain on weight-bearing. In an October 2020 statement, the Veteran’s wife reported that the Veteran’s ankles cause severe pain. She reported they sold their house because it was a challenge for him to utilize the stairs. She reported he is in constant pain and wears braces for stability. She reported he has atrophy of the left ankle which causes him more pain than the right ankle. She further indicates that he often must use a wheelchair or scooter to participate in family activities. The Board finds that for the entire appeal period the preponderance of the evidence shows the Veteran’s bilateral ankle condition manifested in no worse than painful motion or moderate limited motion. As an initial matter, the Veteran shows diagnoses of both traumatic and degenerative arthritis of the ankles. As such, Diagnostic Codes 5003 and 5010 are applicable. Both the older version and the revised versions of Diagnostic Code 5003 provides that x-ray evidence of the involvement of 2 of more major joints with occasional incapacitating episodes warrants a 20 percent rating. The Veteran consistently reported pain and trouble climbing stairs, standing, and walking for long distances. Turning to the evaluation of the Veteran’s ankle based on limitation of motion, the Board finds that the Veteran’s ankles consistently showed noncompensable range of motion or no worse than moderate limited motion. The Veteran had full range of motion during the January 2015 VA examination. In addition, range of motion testing results from the Veteran’s VA treatment records and his most recent VA examination show that the Veteran’s ankle condition manifested in no worse than moderate limited motion when his symptoms are applied to either the older regulations or the revised regulations. See 38 C.F.R. § 4.71a, DC 5271; 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code. The Veteran showed dorsiflexion of no worse than 5 degrees and plantar flexion limited to no worse than 20 degrees. As marked limited motion is not shown a rating in excess of 10 percent for each ankle is not warranted; therefore, the currently assigned single 20 percent rating for both ankles under Diagnostic Code 5010 is more advantageous to the Veteran. In an October 2020 correspondence, the Veteran submitted a Board decision from another Veteran’s case presumably for the assertion that separate ratings are warranted for each ankle. Notably, previous Board decisions are not binding on the Board, unless the decision specifically addressed this particular Veteran’s case. See 38 C.F.R. § 20.1303. Nevertheless, the Board has considered the Veteran’s assertion and finds that Diagnostic Codes 5003 and 5010 consider the involvement of two joints in the current 20 percent rating. In addition, as previously discussed under either version of DC 5271, a 10 percent rating would be assigned to each ankle resulting in a 20 percent total rating. Thus, evaluating the Veteran’s ankles separately under DC 5271 would not result in a higher rating for the Veteran’s disability. In addition, the Veteran is not entitled to separate evaluations under both Diagnostic Codes 5003/5010 and 5271 because it would violate the rule against pyramiding. 38 C.F.R. § 4.14. Finally, the Board has also considered whether a rating in excess of 20 percent is warranted under an alternate diagnostic code. As the evidence does not show ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy, separate evaluations under DCs 5270, 5272, 5273, or 5274 are not applicable. In sum, entitlement to a rating in excess of 20 percent rating for arthritis of the bilateral ankles is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran asserts that his service-connected disability make him unable to secure or follow a substantially gainful occupation. Schedular TDIU may be assigned when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. See 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident are considered one disability for the purpose of meeting the percentage thresholds for TDIU. Id. When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Currently, the Veteran is service connected for degenerative arthritis of the ankles evaluated as 20 percent disabling. Although the Veteran did not meet the applicable percentage standards for TDIU, the Board must still consider whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities to be eligible for extraschedular TDIU. The preponderance of the evidence is against the claim. On the Veteran’s November 2012 Social Security Administration application, he listed he indicated that his chronic ischemic heart disease primarily and his benign neoplasm of the brain secondarily rendered him disabled. He further reported that due to poor heart function he is unable to do any climbing or exert himself. A September 2012 private treatment note, Dr. J.D.L. indicates that the Veteran experienced, “a substantial change in his health.” It was noted that he was found to have an ejection fraction of approximately 15 percent by ultrasound and was found to have 80 percent clogging of his two coronary arteries and he already had a history of stent replacement. It was further noted that a defibrillator was placed because of these cardiac issues and there was some concern as to whether the Veteran may have another cardiac event at some point. The medical service provider noted that the Veteran was still experiencing some balance issues. Dr. J.D.L. stated, “I believe with a defibrillator there are significant restrictions as to what type of equipment he can be around in the workforce particularly welding and any type of magnetic equipment if contraindicated…I believe the job that he has [as a] contractor/servicing supervisor for Genon, he’s exposed to power plants all day, he does quite a bit of walking, he climbs ladders and scaffolds, and with his ongoing medical problems I do not feel comfortable returning him back to gainful employment in this job.” The January 2015 VA ankle examination indicates the Veteran’s ankle disability does not impact his ability to work. During the August 2016 Board hearing, the Veteran reported that his educational background included high school and a nuclear power program while in service. He reported he had been disabled for the last 4 years and prior to that he worked for a power generation company as a contractor services supervisor. He reported that his ankle pain was a longstanding problem. He stated that he retired mainly because of his ankles because his employers said he could not do the job anymore. In the Veteran’s July 2019 TDIU claim he asserts that complications from his brain surgery to remove a tumor and his service-connected ankle disability render him unemployable. A June 2020 correspondence from the Veteran’s last employer confirmed he last worked in March 2012 and that his long-term disability terminated in December 2017. The preponderance of the evidence shows that the Veteran is unable to obtain and maintain substantially gainful employment due to his heart condition, which is not service connected. In addition, based on the medical evidence showing the severity of the Veteran’s non service-connected disabilities, the Board does not find the Veteran’s assertion that he retired mostly because of his ankles credible. As such, referral for extraschedular TDIU is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Williams, 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.