Citation Nr: 21013435 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 10-14 831 DATE: March 9, 2021 ORDER Entitlement to a 20 percent rating for residuals of a right ankle disorder since January 16, 2009, but no higher and no earlier, is granted. An extraschedular rating for service-connected migraines is granted from January 16, 2009. REMANDED Entitlement to a rating of total disability due to individual unemployment based upon service-connected disabilities (TDIU) for the periods from January 16, 2009 until September 1, 2010, and also from December 1, 2010 until December 18, 2012 is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, the evidence of record is at least evenly balanced to show that the Veteran’s service-connected right ankle disorder has manifested in marked limitation in range of motion throughout the period on appeal, i.e.: since January 16, 2009; there is no further increased schedular rating available. 2. The evidence of record is at least evenly balanced to show that the Veteran’s service-connected headaches have manifested with completely prostrating symptomatology, including dizziness, intolerance to light, nausea, and vomiting, requiring frequent hospitalization. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for residuals of a right ankle disorder since January 16, 2009, but no higher and no earlier, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5271. 2. The criteria for a rating higher than 50 percent, on an extraschedular basis, for service-connected migraines from January 16, 2009 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had initial active duty for training from November 1987 to May 1988, and active duty service thereafter in the United States Army from January 25, 1991 to March 26, 1991; from June 2003 to May 2004; and from October 2007 to January 15, 2009, which includes verified service in the Southwest Asia theater of operations (namely Iraq) during the Persian Gulf War from March 15, 2008 until December 8, 2008. Notwithstanding the above, the Veteran also has other extensive service in the U.S. Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2009 rating decision. The Veteran’s claims have a long and complicated procedural history, but he has continuously prosecuted his claims for initial ratings. The claims were most recently remanded by the Board on December 22, 2017; to the extent that the claims remaining on appeal are not yet fully granted for the entire appellate period, the increased rating claims and the claim for TDIU remain in appellate status as classified on the title page. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran was most recently issued a Supplemental Statement of the Case (SSOC) in July 2020. The Board accordingly reasserts jurisdiction over the claim. For the reasons to be more fully explained below, the Board grants the Veteran’s right ankle claim in full; therefore, the Board concludes that the Veteran is not prejudiced by any failure to afford him substantial compliance with those respective portions of previous remand directives. See generally Stegall v. West, 11 Vet. App. 268, 271 (1998). Meanwhile, because the Board grants an entitlement to an extraschedular rating for headaches, the Veteran has been afforded substantial compliance with remand directives. See Stegall, supra. On the other hand, the Board is precluded from issuing a final determination as to TDIU; therefore, this claim must be remanded once more. Increased Ratings Disability evaluations are determined by the application of the facts presented to the VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. at 119, 126-27 (1999). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. 1. Entitlement to a 20 percent rating for residuals of a right ankle disorder since January 16, 2009, but no higher and no earlier, is granted. The Veteran’s residuals of a right and left ankle strain are currently rated under Diagnostic Code 5271. Under Diagnostic Code 5271, a rating of 10 percent is warranted when limitation of motion of the ankle is moderate. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. The maximum rating of 20 percent disabling is available under Diagnostic Code 5271 where the limitation of motion in the ankle is marked. Id. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Notably, the terms “moderate” and “marked” are not defined under VA regulations. Those terms also do not appear to have a generally accepted medical definition. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “moderate” by VA examiners and others, although evidence to be considered by the Board, is 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. Also included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate ankle disabilities based on other manifestations, including Diagnostic Code 5270 (ankylosis of the ankle), Diagnostic Code 5272 (ankylosis of the subastragalar or tarsal joint), Diagnostic Code 5273 (malunion of the os calcis or astragalus), and Diagnostic Code 5274 (astragalectomy). In the December 22, 2017 Board remand, the Veteran’s claim was remanded to the Agency of Original Jurisdiction (AOJ) so that an updated examination could be obtained in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016), in which the Court of Appeals for Veterans Claims (Court) held that VA examinations of joints must, where possible, include range of motion results for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with the range of motion of the opposite undamaged joint. See also 38 C.F.R. § 4.59. The Veteran was afforded a new VA examination for his service-connected right ankle disorder on October 25, 2018. See C&P Exam (October 25, 2018) (rec’d Oct. 31, 2018). Contrary to previous examination reports, the Veteran indicated that his ankle is in fact prone to the effects of flare-ups. See id. at Question No. 2 et seq.; Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner also indicated that the Veteran’s initial range of motion measurements are “all normal,” even though dorsiflexion was measured from 0 to 15 (not 20) degrees, and plantar flexion was measured from 0 to 35 (not 45) degrees. See C&P Exam (Oct. 25, 2018), at Question No. 3a. After three repetitions in repetitive use testing, the Veteran’s right ankle range of motion was measured as follows: dorsiflexion, 0 to 12 degrees (decreased from 15 initially, relative to a normal 20); plantar flexion, 0 to 30 degrees (decreased from 35 initially, relative to a normal 45). See id. at Question No. 3b. The examiner indicated that he could not describe the effects of flare-ups in terms of additional lost range of motion because “The veteran reports that after repeated use over time, the loss of ROM is variable, depending on how strenuously the joint was used. At its worst he cannot move it at all due to pain, but there are other times where the ROM loss is minimal.” See id. at Questions Nos. 3c-d. Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that the evidence of record is at least evenly balanced to show that the Veteran’s right ankle disorder manifests in marked limitation of motion—not merely moderate. See 38 C.F.R. §§ 4.3, 4.7. As for an effective date for the 20 percent rating, the Board concludes that whereas previous examinations may be inadequate in light of Correia, and whereas the Veteran has continuously prosecuted his claim for higher initial ratings, the Board awards the 20 percent rating effective January 16, 2009—the day after his discharge. This yields a maximum schedular rating for this diagnostic code throughout the appellate period. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). In addition, the Board has considered whether a higher or separate rating could be awarded under an alternative diagnostic code for the Veteran’s residuals of a right ankle strain. 38 C.F.R. § 4.71a, Diagnostic Codes 5270-74. In the October 2018 VA examination, the examiner found that the Veteran does not exhibit ankylosis in either ankle. See C&P Examination (Oct. 2018) at Question No. 5. As such, Diagnostic Code 5270 does not apply. Similarly, the Veteran stated that he does not have, and has never been diagnosed with, either os calcis or astragalus, nor has he ever undergone an astragalectomy. See id. at Question No. 7. These findings preclude consideration of Diagnostic Codes 5272, 5273, and 5274, respectively. Under 38 C.F.R. § 4.71a, there are no other diagnostic codes available to evaluate disabilities of the ankle. The Board also acknowledges the Veteran’s sincerely held belief that his right ankle symptoms are more severe than currently contemplated. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology and resulting functional difficulties, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has also considered whether further staged ratings under Fenderson, supra, are appropriate for the Veteran’s residuals of a right ankle strain; however, the Board has already awarded a maximum disability rating throughout the period on appeal; therefore, staged ratings are not possible in this instance. Therefore, assigning further staged ratings for such disability is not warranted. Further, neither the Veteran nor his attorney have raised any other issues nor have any other issues been reasonably raised by the record, in regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Based on the foregoing, the Board finds that a rating of 20 percent for the Veteran’s residuals of a right ankle strain since January 16, 2009, but no higher and no earlier, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As this is a full grant of the sought benefit on appeal, there is no further doubt to resolve, and the Veteran is not prejudiced by any previous failure of substantial compliance with any previous remand directive, nor by any inadequacy with any previous VA examination. See Stegall, supra 2. An extraschedular rating for service-connected migraines is granted from January 16, 2009. The Veteran is already in receipt of a maximum 50 percent rating for service-connected migraines for the entire period on appeal, i.e.: from January 16, 2009. 38 C.F.R. § 4.124a, DC 8100. The Veteran seeks an extraschedular rating in excess of 50 percent. By way of background, in its decision in Johnson v. Wilkie, the U.S. Court of Appeals for Veterans Claims (Court) concluded that Diagnostic Code 8100 is successive, meaning that “each disability level builds on another in terms of duration and frequency, requiring [] a veteran rated at a higher level to satisfy all the requirements of the lower levels.” 30 Vet. App. 245, 253 (2018). The Court also held that the rating criteria for a 50 percent disability rating under Diagnostic Code 8100 are conjunctive, meaning that establishing entitlement to a 50 percent disability rating requires evidence that a claimant's migraine attacks are (1) very frequent, (2) completely prostrating and prolonged, and (3) “productive of severe economic inadaptability.” Id. If one of these elements is missing, a claimant is not entitled to a 50 percent disability rating. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). Finally, the Court concluded that, because Diagnostic Code 8100 contains successive rating criteria, § 4.7 and § 4.21 are not applicable. Id. The Court determined, however, that § 4.3 is not "incompatible with the nature of successive rating criteria." Id. However, the Veteran is in receipt of an initial maximum schedular rating. The Board observes that the rating criteria do not define “prostrating.” Dorland’s Illustrated Medical Dictionary defines “prostration” as “extreme exhaustion or powerlessness.” See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd ed. 2012). The phrase “characteristic prostrating attacks” plainly describes migraine attacks that typically produce powerlessness or a lack of vitality. Johnson, 30 Vet. App. at 253. Similarly, the rating criteria also do not define “severe economic inadaptability.” However, the Court has stated that this term is not synonymous with being completely unable to work and VA has conceded that the phrase “productive of” could be read to mean either “producing” or “capable of producing” economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004) (stating that “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating”). The VA Rating Schedule will apply unless there are exceptional or unusual factors, that render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). When such factors exist and the schedular evaluations are found to be inadequate, a Veteran may be awarded an extraschedular rating higher than the maximum schedular rating. 38 C.F.R. § 3.321(b)(1). An extraschedular rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. Id. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). When the first two prongs of the Thun test are met, the Board will remand the claim to the RO for referral to the Under Secretary for Benefits or the Director of the Compensation Service (Director) to determine whether, to accord justice, the Veteran's disability picture warrants the assignment of an extraschedular rating. Thun, 22 Vet. App. at 111. The Director is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due to the service-connected disability. Extraschedular ratings are warranted in cases that present such an exceptional or unusual disability picture, including marked interference with employment or frequent hospitalization, that the regular schedular standards are rendered impractical. 38 C.F.R. §§ 3.321(b), 4.16(b). The Court has held that neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must first be referred to the Director for extraschedular consideration. Anderson, 22 Vet. App. at 426 (citing Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). However, while the Director’s decision may serve to inform the Board’s review, it is not binding, and the Director’s decision is subject to de novo review by the Board. Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015); see Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (“[A]lthough the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board’s ability to review the denial of an extraschedular rating on appeal.”). In Kuppamala, the Court stated that the Board has the requisite experience to assign extraschedular ratings, as it considers the average impairment in earning capacity in every decision involving the rating schedule, and in many instances, such as when rating a disability by analogy or conducting an analysis of a psychiatric disability under certain diagnostic codes, the Board goes beyond mere mechanical application of the rating schedule. Id. at 457. The Board may assign an extraschedular rating when appropriate and is only precluded from assigning an extraschedular rating “in the first instance.” Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). With respect to the term “in the first instance,” the Court has clarified that the Board may assign extraschedular ratings when reviewing either a grant or a denial of an extraschedular rating by the Director. Kuppamala, 27 Vet. App. at 456. Indeed, the Board is permitted to review the entirety of the proceedings below. 38 U.S.C. § 7104(a) (stating that the Board’s review is “based on the entire record in the proceeding and upon consideration of all evidence and material of record”). It thus follows that the Board has jurisdiction to review whether the decision not to award an extraschedular rating was appropriate under all three elements set forth in Thun. Anderson, 22 Vet. App. at 428. In sum and substance, the Veteran’s claim for an increased rating for service-connected migraines was remanded in December 2017, specifically so that the Director could opine as to extraschedular eligibility under 38 C.F.R. § 4.16(b). The Board notes that when the matter was referred to the Director, only medical evidence as of October 20, 2017 was available for review. See Correspondence (June 12, 2020). This includes a September 2016 VA examination in which the Veteran reported four to five migraines monthly lasting from five to nine days. See id.; C&P Exam (September 1, 2016). In the referral to the Director, the AOJ recommended a denial of extraschedular eligibility. In July 2020, see VA Memo (July 23, 2020), the Director concurred in this denial. The Director acknowledged an ophthalmology note in which the Veteran complained that his headaches affected his left eye vision and caused sufficiently severe and frequent pain that he could not function in an economic environment, and that he has been unemployed since February 8, 2013. See id. After a careful review of the record, including evidence of record not forwarded to the Director between October 20, 2017 and July 23, 2020, the Board finds that the schedular criteria are not adequate to rate the Veteran’s service-connected migraines, and an extraschedular rating is warranted. In this regard, the weight of the evidence shows that Veteran’s service-connected migraines result in an exceptional and unusual disability picture characterized by marked interference with employment. In support, the observes that during the period on appeal (when the Veteran was already in receipt of a 50 percent rating), the Veteran has complained of “constant” migraines as of January 2017, see VA Treatment Record (January 5, 2017), while manifesting in blurred vision and vomiting—albeit with “some” help via Imitrex—in April 2017, see id. (April 6, 2017). By July 2017, the Veteran’s migraine disorder manifested in decreased vision in the left eye; by August 2017, increased medication as frequently as one 50 milligram oral tablet every four hours with permissible repetition in two hours if needed. See e.g.: id. (July 26, 2017; August 10, 2017; September 27, 2017). As of April 27, 2018, the Veteran’s right eye required amputation, but the Veteran’s headache pain, vomiting, nausea, and intolerance of light continued, and the Board also further concludes that his previous complaints of blurring in his left eye, supra, would mean that this eye is his one remaining eye. See VA Treatment Records (April 17, 2018; April 27, 2018; May 4, 2018). The Veteran was also subsequently admitted to the emergency room due to residuals of migraines. See id. (September 4, 2019; April 17, 2020). Based on the aforementioned finding that the Veteran’s service-connected migraines warrant an extraschedular rating, the Board disagrees with the Director’s July 2020 opinion denying extraschedular consideration. Pursuant to the Court’s holding in Kuppamala, the Board is empowered to review decisions by the Director regarding awards and extraschedular disability ratings under 38 C.F.R. § 3.321(b)(1). Kuppamala, 27 Vet. App. at 455-56. The Court further held that the Director’s decision regarding assignment of an extraschedular rating is one of fact, not of opinion, discretion, or policy, and as such, it is reviewable by the Board de novo. See id. at 457. As such, the Board may assign an extraschedular rating when appropriate, and is only precluded from assigning an extraschedular rating “in the first instance.” Floyd v. Brown, 9 Vet. App. 88, 9495 (1996). Here, that is not the case. Reviewing the Director’s July 2020 decision de novo, the Board finds that an extraschedular evaluation is warranted for service-connected migraines from January 16, 2009. In so finding, the Board observes that the Director’s July 2020 decision failed to show consideration of relevant evidence, including the Veteran’s VA treatment records showing multiple hospitalizations for migraines, compelling evidence that his service-connected migraine disorder is intertwined with other service-connected disorders including legal blindness, and other evidence after October 20, 2017 that was in constructive possession of VA. The weight of the evidence is at least evenly balanced to support a finding that the Veteran’s migraines manifest in symptomatology that is not contemplated by the schedular criteria. Further, the evidence is at least in equipoise as to whether the Veteran’s migraines cause marked interference with employment. In this regard, the Board notes that in order to obtain an extraschedular rating under § 3.321, the Veteran need not show he is totally unemployable; instead, he need only demonstrate marked interference with employment. In light of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board concludes that the schedular criteria are not adequate to rate his service-connected migraines, which have resulted in marked interference with employment. Accordingly, to accord justice to the Veteran, the Board finds that entitlement to an extraschedular rating for service-connected migraines from January 16, 2009 is warranted. To not prejudice the Veteran and allow for full appeal rights and options, the AOJ will assign this extraschedular rating in the first instance. REASONS FOR REMAND 1. Entitlement to a TDIU for the periods from January 16, 2009 until September 1, 2010, and also from December 1, 2010 until December 18, 2012 is remanded. The Veteran’s claim for a TDIU for the two periods accordingly remaining on appeal was remanded on December 22, 2017. Because the Board is granting a claim for increased ratings for the right ankle disorder, and also because the AOJ shall now adjudicate an extraschedular rating for the migraine disorder, adjudication of the claim for TDIU must be deferred so that the AOJ can implement those increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Additionally, the Board cannot ignore that the Veteran’s most recently issued SSOC only discusses entitlement to a TDIU for the former period, but not for the latter period. The Board is precluded from issuing a final determination as to entitlement to a TDIU on one period on appeal only when the Board previously remanded the claim for two periods on appeal. This is because an adjudication as to one portion of the TDIU claim may affect the other portion, and the Veteran is ultimately entitled to substantial compliance with all previous remand directives. See Stegall, supra. The matters are REMANDED for the following action: 1. The AOJ should implement a 20 percent rating for the Veteran’s service-connected right ankle disorder, effective January 16, 2009. 2. The AOJ should also implement an extraschedular rating in excess of 50 percent for the Veteran’s service-connected migraine disorder, effective no earlier than January 16, 2009. 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal, including entitlement to a TDIU from January 16, 2009 to September 1, 2010 and also from December 1, 2010 to December 18, 2012. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.