Citation Nr: 21013594 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 09-50 062 DATE: March 9, 2021 ORDER Prior to September 4, 2019, an evaluation of 20 percent, and no greater, for neurological manifestations of right ankle injury is granted. Since September 4, 2019, an evaluation in excess of 30 percent for neurological manifestations of right ankle injury is denied. Prior to September 4, 2019 an evaluation greater than 20 percent for orthopedic manifestations of right ankle injury is denied. Beginning September 4, 2019, an evaluation greater than 30 percent for orthopedic manifestations of right ankle injury is denied. The claim for service connection for a dental disability including for compensation purposes is denied. Prior to September 4, 2019, the claim for a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Prior to September 4, 2019 the service-connected neurological manifestations of right ankle injury were manifested by symptoms approximating severe incomplete paralysis of the right superficial peroneal nerve. 2. Since September 4, 2019, the service-connected neurological manifestations of right ankle injury are manifested by no more than complete paralysis of the superficial peroneal nerve. 3. Prior to September 4, 2019, the service-connected orthopedic manifestations of right ankle injury were manifested by no more than marked limitation of right ankle motion considering pain, pain on motion; and increased pain, weakness, fatigability, incoordination and abnormal gait on repetitive motion and flare ups; without findings of ankylosis; abduction, adduction, inversion or eversion deformity; ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, or astragalectomy. 4. Since September 4, 2019, the service-connected orthopedic manifestations of right ankle injury were manifested by ankylosis in dorsiflexion at zero and range of plantar flexion motion from zero to 10 degrees at its most limited considering pain, pain on motion; and increased pain, weakness, fatigability, incoordination and abnormal gait on repetitive motion and flare ups; without findings of abduction, adduction, inversion or eversion deformity, ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, or astragalectomy. 5. Throughout the period on appeal, the manifestations of the service-connected right ankle injury are adequately contemplated by the rating Schedule and do not present an exceptional disability picture as to warrant an extraschedular evaluation. 6. The medical evidence does not establish that the Veteran’s manifested dental disorder is the result of active service, including for the purpose of treatment. 7. The Veterans service-connected right ankle and bilateral foot disabilities prevent her from securing or following a substantially gainful occupation throughout the appellate period. CONCLUSIONS OF LAW 1. Prior to September 4, 2019, the criteria for an evaluation of 20 percent, and no greater, for service-connected neurological manifestations of right ankle injury are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.120, 4.123, 4.124, 4.124A, Code 8522. 2. Since September 4, 2019, the criteria for an evaluation in excess of 30 percent for service-connected neurological manifestations of right ankle injury are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.120, 4.123, 4.124, 4.124A, Code 8522. 3. Prior to September 4, 2019, the criteria for an evaluation in excess of 20 percent for orthopedic manifestations of right ankle injury are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Code 5271. 4. Since September 4, 2019, the criteria for an evaluation in excess of 30 percent for service-connected orthopedic manifestations of right ankle injury are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.46, 4.59, 4.71a, Diagnostic Code (Code) 5003-5270. 5. The criteria for service connection for a dental disability for both compensation and treatment purposes are not met. 38 U.S.C. § 1712 ; 38 C.F.R. §§ 3.381, 4.150, 17.161. 6. Prior to September 4, 2019, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army on active service from July 1973 to October 1974. This appeal comes before the Board of Veterans Appeals (Board) from a May 2008 rating decision of the United States Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming in which service connection for stress fractures and heel spurs in the bilateral feet, residuals of right ankle injury, and residuals of injury to front teeth for dental treatment purposes was denied; an evaluation greater than 10 percent for residuals of a right ankle injury was denied, and TDIU was denied. This case has been before the Board previous in 2012, 2014, 2016, 2017 and in 2018. After additional development ordered in 2012 and 2014, the Board denied an evaluation in excess of 20 percent for orthopedic manifestations of the service-connected right ankle injury residuals in an April 2016 decision, remanding the other pending claims for further development. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In February 2017, the Court vacated the April 2016 Board decision and remanded for additional development consistent with a joint motion for remand. Subsequently, the Board remanded the claims for development consistent with the Court order in 2017 and again in February and October 2018. In October 2020, and during the pendency of this appeal, service connection was granted for left and right foot degenerative disease with metatarsalgia, chronic tendinitis and heel spurs. Because the claims for service connection sought on appeal were granted, these claims are no longer before the Board. In addition, increased evaluations were granted for right ankle residuals during the period on appeal. In November 2009, a 20 percent evaluation was assigned effective the day the Veteran’s claim was received in May 2007 under Code 8522-5271. In February 2020 an evaluation of 30 percent was granted effective September 4, 2019 under Code 5003-5270. Also in February 2020, a separate 20 percent evaluation was granted effective September 4, 2019 for right ankle peripheral neuropathy under code 8522. In October 2020, the evaluation under code 8522 was increased to 30 percent, effective September 4, 2019. A second rating decision in October 2020 granted TDIU, effective September 4, 2019. However, as these increases do not represent the maximum evaluation afforded by the regulations or, concerning TDIU, were not made effective the date of the Veteran’s claim, these issues remain before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). To simplify reference to the claims, which are now staged, as well as clearly identify them, the Board will consistently describe the identified and service-connected residuals as neurological and orthopedic, as in the Order above. The Veteran testified before a Veterans Law Judge in November 2011. A transcript of the hearing has been added to the record. The Veterans Law Judge who held the hearing in November 2011 is no longer employed by the Board. The Veteran was notified of this by a January 2021 letter, and was offered an opportunity to have a new hearing. She was given 30 days to respond, after which it would be presumed she did not desire a new hearing. She did not respond, and hence the Board finds it may proceed with the case. Duty to Notify and Assist The Board finds that the agency of original jurisdiction has fulfilled the duty to notify and assist the Veteran in substantiating his claim for VA benefits, as prescribed in 38 U.S.C. §§ 5100, 5102, 5103, 5109A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). All identified and relevant records, other than records from the Social Security Administration (SSA) have been obtained or appropriate efforts to secure them have been undertaken and adequate VA examinations were provided, including pursuant to remands in 2012, 2014, 2016, 2017 and 2018. See 38 U.S.C. § 5103A(d), 38 C.F.R. § 3.159(c)(4), and McLendon v. Nicholson, 20 Vet. App. 79 (2006). SSA records have not been obtained. Notwithstanding, the Board finds it may proceed with the claims at issue. This is because the Board is granting the claim for TDIU and, in part, the claims for increased ratings. Moreover, Veteran testified and reported that she was awarded SSA disability benefits in 2008, approximately a year after her claim and two years before her first recorded treatment for dental issues. Thus, there remains little else that these records could provide in terms of substantiating her claims. In any case, while SSA determinations are relevant, and the records relied upon to make SSA determinations are probative evidence in consideration of the Veteran’s appeal, SSA decisions are not binding on the Board. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). As such, the Board finds that the Board may proceed in this instance without these records. Further concerning the Veteran’s dental claim, her service treatment records are incomplete. Specifically, her dental records have not been obtained. The agency of original jurisdiction notified the Veteran of the inability to obtain complete service treatment records to include dental in February and December 2009, and in June 2011. The Veteran responded that she had no copies of these records (see April 2009 and September 2011 Formal Findings on Unavailability of Requested Documents/Information). The Veteran responded in February 2009 that she had no copies of her service records and requested that the claim proceed. She has presented no further medical evidence or information of additional treatment concerning her dental claims. Therefore, the Board finds it may proceed with her claim, and acknowledges that it has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule in this case under O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Additionally, the 2019 VA examiner could not describe additional functional impairment and loss, in terms of degrees, during flare-ups or periods of repeated use. However, the examiner explained his reasoning and the functional impairment experienced by the Veteran during overuse and flare scenarios. Therefore, the Board finds the examiner’s reasoning adequate. Neither the Veteran nor her representative have argued that the AOJ has not ultimately met its duty to assist. The Board thus finds that the AOJ has met its duty to assist and further remand is not required. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings The Veteran and her representative argue that higher evaluations for the neurological and orthopedic residuals of her right ankle disability warrant higher evaluations than have been assigned. In this instance, review of the history of the right ankle disability is required. The RO granted service connection for “residuals of right ankle injury” in a December 1975 decision, rated 10 percent disabling from the day following separation, October 16, 1974. The disability was described in both neurological (partial peroneal palsy) and orthopedic manifestations (motion 50 degrees to 110 degrees with pain and weakness, normal x-rays). The diagnostic code applied, 8522, was neurological. In the May 2008 decision on appeal here, the RO confirmed and continued a 10 percent rating for “paralysis of the superficial peroneal nerve, right ankle” and denied service connection for “residuals, right ankle injury.” During the processing of that appeal, a Decision Review Officer (DRO) recognized that the original grant had encompassed both neurological and orthopedic manifestations, and issued a decision finding clear and unmistakable error (CUE) in the 2008 decision. A November 2009 decision instead assigned a combined 20 percent rating under Code 8522 for both types of manifestations. While the action of the DRO in recognizing the error is commendable, his action to fix it was incomplete. Instead, the orthopedic and neurological manifestations should have been rated as separate conditions, under different Codes, presumably 8522 and 5271, as he indicated in November 2019. The Board has, therefore, separated the right ankle into its constituent aspects for evaluation, as reflected above. The Board notes as well that a 10 percent rating for the right ankle is protected, as it has been in effect for over 20 years. 38 C.F.R. § 3.951. In February 2020, the agency of original jurisdiction granted a higher, 30 percent, evaluation for ankylosis of the right ankle under code 5003-5270 for arthritis based on ankylosis in dorsiflexion between zero and 10 degrees, effective from September 4, 2019. The February 2020 rating decision also granted a separate 20 percent evaluation for peripheral neuropathy of the right lower extremity evaluated as incomplete paralysis of the superficial peroneal nerve under Code 8522 effective September 4, 2019. Subsequently, in an October 2020 rating decision, the evaluation assigned for neurological manifestations of right ankle injury residuals impairment of the right ankle was increased to 30 percent, for complete paralysis of the superficial peroneal nerve under Code 8522, effective September 4, 2019. In the rating decision, the agency of original jurisdiction noted involvement of the deep peroneal (anterior tibial) nerve in addition to the superficial popliteal nerve, but explained that additional compensation could not be granted under the code assigned to the deep peroneal nerve (8523) because to do so would be to impermissibly compensate the same symptoms more than once under different diagnostic codes in violation of 38 C.F.R. § 4.14, regarding pyramiding. Furthermore, the February and October 2020 rating decision with the November 2020 supplemental statement of the case, reflect that the 20 percent evaluation assigned under code 8522-5271 prior to September 4, 2019 and 30 percent evaluation assigned under code 5003-5270 beginning September 4, 2019 were intended to be based on the orthopedic manifestations of, respectively, limitation of motion and ankylosis of the right ankle joint. Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. Separate Codes identify the various disabilities. See 38 U.S.C. 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. See 38 C.F.R. § 4.7. The evaluation of the same disability under several Codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995). Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s right ankle neurologic manifestations have been evaluation most recently under code 8522 for complete paralysis of the superficial peroneal nerve. Code 8522 contemplates impairment of the superficial peroneal (musculocutaneous) nerve. A zero percent evaluation is afforded for mild incomplete paralysis. A 10 percent evaluation is afforded for moderate incomplete paralysis. A 20 percent evaluation is afforded for severe incomplete paralysis. A 30 percent evaluation is warranted for complete paralysis with eversion of the foot weakened. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The words “mild,” “moderate,” and “severe” as used in the various Codes are not defined in the rating Schedule. 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. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of 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. Other potentially relevant Codes include Code 8521 and 8523. Code 8521 contemplates impairment of the common peroneal (popliteal) nerve. A 10 percent evaluation is afforded for mild incomplete paralysis. A 20 percent evaluation is afforded for moderate incomplete paralysis. A 30 percent evaluation is afforded for severe incomplete paralysis. A 40 percent evaluation is warranted for completely paralysis involving foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. Code 8523 contemplates impairment of the deep peroneal (tibial) nerve. A zero percent evaluation is afforded for mild incomplete paralysis. A 10 percent evaluation is afforded for moderate incomplete paralysis. A 20 percent evaluation is afforded for severe incomplete paralysis. A 30 percent evaluation is warranted for complete paralysis involving lost dorsal flexion of the foot. 38 C.F.R. § 4.124A, codes 8521, 8522, 8523. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Veteran’s right ankle orthopedic manifestations have been evaluated most recently under code 5003-5270 as arthritis rated as ankylosis. See 38 C.F.R. § 4.27. Code 5270 contemplates ankylosis of the ankle. A 20 percent evaluation is afforded for ankylosis of the ankle joint in plantar flexion, less than 30 degrees. A 30-degree evaluation is afforded for ankylosis of the ankle joint in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between zero and 10 degrees. A 40 percent evaluation is warranted for ankylosis of the ankle joint within plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. Code 5271 affords a 10 percent evaluation for limited motion of the ankle that is moderate in severity. A 20 percent evaluation is warranted for limitation of ankle motion that is marked in severity. Code 5272 affords a 10 percent evaluation for ankylosis of the subastragalar or tarsal joint in a good weight-bearing position. A 20 percent evaluation is warranted for ankylosis of the subastragalar or tarsal joint in a good weight-bearing position. Code 5273 affords a 10 percent evaluation for malunion of the os calcis or astragalus with moderate deformity. A 20 percent evaluation is warranted for malunion of marked deformity. Code 5274 affords a 20 percent evaluation for residuals of astragalectomy. 38 C.F.R. § 4.71A, codes 5270 through 5274. Effective February 7, 2021, the evaluations pertaining to the evaluation of musculoskeletal disabilities were revised. See 85 Fed. Reg. 76460 (November 30, 2020). These changes do not impact the Veteran’s case. First, the service-connected right ankle orthopedic residuals are evaluated under Code 5270 as of February 7, 2021. This code was not affected by the change. Code 5271 was revised, but the effective date of that revision, February 7, 2021, post-dates the assignment of Code 5270 in lieu of 5271. No other changes made to the orthopedic regulations apply in the present case. Thus, although the Board would ordinarily review both the revised and unrevised regulations to determine which would be more beneficial to the Veteran, such analysis is not required in the present case. See VAOPGCPREC 7-2003 ; Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Right Ankle Injury Neurological Manifestations The Veteran argues that a separate compensable evaluation should be assigned the neurological manifestations of right ankle injury residuals prior to September 4, 2019, and that an evaluation greater than 30 percent is warranted beginning September 4, 2019. The medical evidence supports her contentions in part. There is no dispute that the Veteran has received treatment for her service-connected right ankle neurological impairment. VA treatment records and VA examinations show she reported and was treated over the appeal period for neurological impairment including loss of sensation and dysesthesia, including with physical therapy, and prescribed medications. a) Prior to September 4, 2019 The 2015 and 2019 VA examinations for peripheral nerves and 2020 medical opinion based their findings and rationale in part on electromyograph findings dated in 2012. Therefore, it is clear that the neurological impairment upon which the 30 percent evaluation under code 8522 was based in fact existed prior to September 4, 2019. The medical evidence shows continuity of neurological impairment. The 2012 electromyograph report showed findings of tibial mononeuropathy with medial and lateral plantar neuropathy, and the 2012 VA examination shows a diagnosis of partial peroneal nerve paralysis . In 2014, during VA examination the Veteran reported an extremely painful burning sensation on the tops of her feet; and the 2015 VA examination shows absent sensation in the right lower extremity and decreased strength in right ankle plantar flexion and dorsiflexion. The 2015 VA examiner identified moderate incomplete paralysis of the right common peroneal (external popliteal) nerve, and mild incomplete paralysis of the right superficial peroneal, deep peroneal (anterior tibial), internal popliteal (tibial), and posterior tibial nerves. The medical findings over the course of the appeal, include the original diagnosis of peroneal palsy and peroneal nerve injury in 2007, diagnoses and findings of neurological impairment including the peroneal nerve in 2012, 2014, and 2015, and in 2019. According all benefit of doubt to the Veteran’s consistent reports of pain and numbness throughout, the Board finds a 20 percent evaluation is warranted under Code 8522 which contemplates severe incomplete paralysis of the superficial peroneal nerve. The 20 percent evaluation for severe incomplete paralysis of the superficial peroneal nerve under Code 8522 is assigned rather than the 20 percent evaluation for moderate incomplete paralysis of the common peroneal nerve under Code 8521 because the percentage is equivalent to the highest degree of functional impairment assessed during the period under appeal while retaining consistency of diagnosis as required by the regulations. See 38 C.F.R. § 4.13. A higher, 30 percent, evaluation is not warranted under Code 8522 because neither complete paralysis of the superficial peroneal nerve nor severe incomplete paralysis of the common peroneal nerve was found prior to September 4, 2019. Separate, compensable evaluations cannot be assigned for the individual nerves involved without pyramiding under 38 C.F.R. § 4.14. Accordingly, prior to September 4, 2019 an evaluation of 20 percent and no greater for neurological manifestations of the right ankle injury under Code 8522 is warranted. b) Beginning September 4, 2019 The 2019 VA examination for peripheral nerves shows findings of decreased sensation, numbness and dysesthesias, trophic changes including loss of hair below the level of the knee, and abnormal gait. The VA examiner identified the impaired nerves affected as complete paralysis of the right superficial peroneal nerve and severe incomplete paralysis of the right common peroneal and deep peroneal nerves. This warrants a 30 percent evaluation under 8522 for complete paralysis of the superficial peroneal nerve. However, a higher evaluation cannot be warranted as there are no findings of complete paralysis of the common peroneal or internal popliteal (tibial) nerve. Separate, compensable evaluations cannot be assigned for the individual nerves involved without pyramiding under 38 C.F.R. § 4.14. Accordingly, an evaluation greater than 30 percent for peripheral neuropathy of the lower right extremity evaluated as either complete paralysis of the superficial peroneal nerve or severe incomplete paralysis of the common peroneal nerve is not warranted. Right Ankle Injury Orthopedic Residuals The Veteran argues that her right ankle orthopedic manifestations are more disabling than reflected by the 20 percent evaluation prior to September 4, 2019 and the 30 percent evaluation beginning September 4, 2019. There is no dispute that the Veteran has received treatment for her service-connected right ankle orthopedic disabilities. VA treatment records and VA examinations show she reported and has been treated over the appeal period for pain, pain on motion, limited motion, and increased functional impairment from weakness, lack of endurance, and loss of functional impairment on repetitive motion and during flare-ups including with physical therapy, and prescribed and over-the-counter medications, braces, wheelchair, cane, crutches, and a walker. a) Prior to September 4, 2019 Prior to September 4, 2019, VA examinations conducted in 2012, 2014, 2015 and 2019 reflect range of motion measured zero to 5 degrees dorsiflexion and zero to 10 degrees plantar flexion during this time period. When considering painful motion, additional limitation of motion, and functional impairment after repetitive use and on flare-ups due to less movement than normal, weakened movement, excess fatigability, swelling, instability, and interference with sitting, standing and weight bearing in both lower extremities, additional limitation expressed in range of motion, was measured at zero to zero in dorsiflexion and plantar flexion at its most limited this time period. This meets the criteria for a 20 percent evaluation for marked limitation of right ankle motion under code 5271. However, these manifestations do not meet the higher, 30 percent, evaluation afforded under Code 5270 because VA examinations and VA treatment records do not show the right ankle joint was ankylosed at any time during this time period. Rather, it is not until VA examination in September 2019 that the right ankle joint was found to be ankylosed. Additional evaluations are afforded for ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. However, the medical evidence does not show the required manifestations are present. The medical evidence does not show that the subastragalar or tarsal joints are ankylosed, that there is malunion of the os calcis or astragalus, or that the Veteran has undergone astragalectomy at any time during the relevant period of time. Absent findings of ankylosis, or of ankylosis of the subastragalar or tarsal joint, malunion of the os calcic or astragalus, or astragalectomy, an evaluation greater than 20 percent, or additional compensable evaluations under Codes 5272, 5273, or 5274 cannot be assigned. Accordingly, an evaluation greater than 20 percent prior to September 4, 2019 is not warranted for orthopedic manifestations of right ankle injury residuals. b) Beginning September 4, 2019 Beginning September 4, 2019, VA examination findings show the Veteran’s right ankle joint was found to be ankylosed at zero degrees dorsiflexion. Range of plantar motion was measured at zero to 25 degrees at its most limited. This meets the requirements for a 30 percent evaluation under code 5720. A higher, 40 percent, evaluation could be warranted under code 5270, but the medical evidence does not show the required manifestations are present. The medical evidence does not show that the right ankle joint is ankylosed in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. In addition, there are no findings of ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, or astragalectomy, such that would warrant an additional evaluation under codes 5272, 5273, or 5274. Absent findings of ankylosis in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity or findings of ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, or astragalectomy, a higher or additional evaluations cannot be assigned. Accordingly, an evaluation of more than 30 percent is not warranted for ankylosis of the right ankle beginning September 4, 2019. Extraschedular Evaluation It is further argued that an extraschedular rating in excess of 20 percent prior to September 4, 2019 and in excess of 30 percent beginning September 4, 2019 is warranted for the service-connected right ankle neurological and orthopedic disabilities under 38 C.F.R. § 3.321(b)(1). The evidence does not support these contentions. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from diseases and injuries encountered as a result of or incident to military service and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the ratings Schedule is designed to be robust and adaptive, there will be occasions where the ratings provisions do not adequately describe and compensate a particular disability. When determining whether a claimant is entitled to an extraschedular rating, the Board must determine whether the evidence “presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.” Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff’d sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); see 38 C.F.R. § 3.321 (b)(1). An extraschedular rating under 38 C.F.R. § 3.321 (b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran’s disability. Exceptional or unusual circumstances, such as frequent hospitalizations or marked interference with employment, are required. In 2017 and 2018 remands, the Board directed the referral of these issues to the Director for initial consideration of extraschedular entitlement because the Board may not assign such in the first instance, and as requested in the February 2017 joint motion for remand. In an April 2020 response, the Director declined to assign an extraschedular evaluations for ankylosis of the right ankle. The Director observed the medical evidence shows the right ankle disability is characterized by pain, numbness, burning and other symptoms. In addition, although the right ankle was found to be ankylosed beginning September 4, 2019. Notwithstanding, the Director observed the Veteran retained a limited range of motion through which the ankle could progress. Relative to these findings, the Direct stated there were higher evaluations and separate, compensable evaluations available for lessor range of motion in ankylosis and for additional manifestations of ankle disability. Crucially, the Director observed that the evidence showed no exceptional factors such as frequent hospitalization or marked interference with employment due solely to the right ankle disability. Rather, and as noted above in the discussion on TDIU, the evidence, overall, did not establish the Veteran was disabled due to her service-connected right ankle alone. Accordingly, the Director found the rating criteria adequately describes the current disability level and symptomatology attributed to the right ankle disability alone despite the Veteran’s significant symptoms and their interreference with her ability to work. The Board agrees. With regard to right ankle neurological and orthopedic impairment, the Veteran reports and has been observed to manifest pain, burning pain, pain on weight bearing, painful and limited motion, altered gait and the need for assistive devices. These are exactly the manifestations compensated by the applied rating criteria, particularly in light of the application of such through the lens of factors causing actual additional functional impairment, such as pain, weakness, fatigability, lack of endurance, and incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). There are no signs or symptoms not accounted for under the schedular criteria for evaluation of right ankle neurological or for right ankle orthopedic residuals. Further, there is no evidence of factors such as marked interference with employment or frequent periods of hospitalization due solely to the right ankle neurological or orthopedic manifestations of right injury residuals. While all service-connected conditions do result in unemployability, as discussed above, the right ankle disability, in and of itself, is not shown to result in impairment of economic inadaptability beyond that already contemplated by the Schedule. The percentage ratings contained in the 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. §§ 3.321(a), 4.1. Accordingly, an extraschedular evaluation in excess of 20 percent prior to September 4, 2019 and in excess of 30 percent beginning September 4, 2019 are not warranted for the service-connected right ankle neurological and orthopedic manifestations. Other Considerations Concerning the Right Ankle Injury Residuals The 2017 joint motion for remand also argued that the Veteran should be compensated for loss of the use of her right foot. However, the medical evidence does not support a finding that the Veteran has lost the use of her right foot. Special monthly compensation under 38 U.S.C. § 1114 (k) is payable for each anatomical loss or loss of use of one foot. 38 C.F.R. § 3.350 (a). Loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350 (a)(2)(i). The regulations further provide that extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the foot involved; complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. 38 C.F.R. § 3.350 (a)(2)(i)(a) and (b). In 2014 VA examinations for the right ankle and feet, the VA examiner opined that the bilateral lower extremity disabilities rendered the right foot function so diminished that amputation with prostheses would equally serve. However, VA examinations in 2015 did not agree. The 2015 VA examiner was asked to offer an addendum resolving the apparent contradiction with specific consideration of the right ankle, as the bilateral foot condition had not yet been service-connected. In response, the 2015 VA examiner opined that amputation with prosthesis would not equally serve the Veteran, and explained the Veteran was able to walk without a wheelchair or assistive devices other than a brace on the left foot, albeit very slowly and with obvious signs of pain. Thus, despite functional loss caused by increased limitation of motion, fatigue, weakness, lack of endurance, swelling, disturbance of locomotion, and interference with sitting and standing resulting from repetitive motion and flare-ups, the VA examiner stated it was at least as likely as not that the Veteran would not benefit from amputation and prosthesis. VA examinations prior to 2014 and subsequent to 2015 did not find amputation with prosthesis would equally serve the Veteran’s right ankle injury residuals. Turning to the other criteria in the regulations, the medical evidence does not show that the required manifestations are present in either lower extremity. As noted above, the Veteran is able to walk, albeit for short distances and with pain. In addition, neither foot is characterized by complete ankylosis of two major joints of the lower extremity or shortening of the lower extremity. Moreover, although the right ankle disability is manifested by ankylosis of the right ankle joint, the Veteran is able to move the right ankle within a range of zero- and 10-degrees dorsiflexion. Plantar flexion movement is not ankylosed. Furthermore, while the superficial peroneal nerve of the right lower extremity is completely paralyzed and the right foot manifests characteristic hair loss, the right common and deep peroneal nerves are severely incompletely paralyzed, at worst during the time period on appeal. In other words, the Veteran retains the ability to dorsiflex, move his toes, bear weight, and has some, but not all, sensation in his right lower extremity. Consequently, the Veteran’s service-connected right ankle and bilateral foot disabilities are not manifested by loss of use of either foot. The Board additionally notes the potential impact of the amputation rule, which provides that the combined evaluation for an extremity may not exceed the evaluation assigned for amputation of that extremity at the corresponding level, were such an amputation to be performed. 38 C.F.R. § 4.68. This rule must be applied at the RO level when payment of monetary benefits based on the Board decision is implemented. In other words, the assigned evaluations for each disability are implemented and reflected in the Corporate record, and then the rule capping actual payment is applied administratively. Service Connection of a Dental Condition for Treatment Purposes The Veteran contends that she has a dental disability consisting of the loss of her lower jaw teeth that is related to a fall during active service. In November 2011 she testified under oath that she fell in 1974 while still in a boot for her right ankle injury, injuring her left ankle and breaking the teeth of her bottom jaw. The medical evidence does not support her contentions. Dental disorders which may be compensable include irreplaceable missing teeth, and disease and damage to the jaw. 38 C.F.R. § 4.150, DCs 9900-9916. Tooth loss is only compensable where it is due to loss of substance of the body of the maxilla or mandible without loss of continuity. Id. , DC 9913. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. In determining service connection, the condition of teeth and periodontal tissues at the time of entry into active duty will be considered. Treatment during service, including filling or extraction of a tooth, or placement of a prosthesis, will not be considered evidence of aggravation of a condition that was noted at entry, unless additional pathology developed after 180 days or more of active service. See 38 C.F.R. § 3.381 ; see also 38 C.F.R. § 17.161. There is no dispute that the Veteran manifests a current dental disability. VA examinations in 2014 and 2015 and VA treatment records document that she manifests edentous maxilla and missing lower posterior teeth, bilaterally. In addition, for the purposes of this analysis, the Board notes the Veteran is competent to state that she fell and injured her jaw, breaking teeth, during active service. Notwithstanding, there is dispute as to whether the Veteran’s current dental problem is the result of an injury to the jaw and/or teeth during active service. Turning to the medical evidence of record, service treatment records reflect the Veteran reported in her medical history at entrance to active service that she had broken her jaw eight years earlier. However, she reported no current tooth or dental condition either on entrance to or exit from active service, and medical examination found no dental defect, disease, abnormality or other findings at entrance to and separation from active service. Thereafter, VA treatment records show the Veteran first sought dental treatment in 2010. VA dental examinations in 2014 and 2015 VA reflect the Veteran manifests edentous maxilla and missing lower posterior teeth bilaterally. However, the 2014 VA examiner opined that the loss of the lower teeth appeared to be from periodontal disease. The VA examiner explained review of the claims file revealed no dental diagnosis that would support any current oral condition that was related to any military service. Rather, the VA examiner observed that the medical evidence indicated the Veteran incurred trauma to the mandible prior to entrance to active service. The VA examiner based his findings on examination of the Veteran, and review of the record. Furthermore, the findings and opinion presented are based on representations the Veteran herself made on entrance to and exit from active service, as shown in the record. Accordingly, the 2014 VA examiner’s findings and opinion are consistent with the medical evidence of record and thus are not only probative but of substantial weight. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran has presented no medical opinions, findings or statement tending to establish that her missing lower teeth occurred during active service or that they are the result of events that occurred during active service. Absent medical evidence that the Veteran’s dental condition was the result of active service, service-connection and/or service connection for the purpose of dental treatment cannot be granted. See 38 C.F.R. § 3.381 ; see also 38 C.F.R. § 17.161; Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). It is noted that the Veteran’s service dental records are incomplete and presumed missing. Veteran was informed of this, as noted above; however, she has provided no further evidence to support her claim. “The duty to assist is not always a one-way street. If a veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence.” See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board observed that the O’Hare precedent does not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board’s obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened “benefit of the doubt,” only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant’s medical records have been lost or destroyed. Thus, missing service treatment records alone are indeed unfortunate, but it does not remove the need for the Veteran to still have competent and credible evidence supporting her claim for service connection and/or service connection for treatment by showing the claimed dental condition is the result of active service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401 (1991) and O’Hare, 1 Vet. App. at 367 ). Absent a finding that the Veteran sustained jaw or dental injury during active service or treatment that caused her claimed dental condition, service connection and/or service connection for treatment cannot be granted. The Board acknowledges the Veteran’s testimony that she has residuals of an injury to her jaw and lower teeth which requires dental treatment. However, the medical evidence of record does not show that the Veteran’s current lower jaw disability is the result of any dental injury or treatment sustained during active service. Moreover, the Veteran has not provided VA with any medical evidence in support of her claim. A veteran must cooperate when he is asked for information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Otherwise, he denies VA evidence which might have helped establish his claim. In this case, the Veteran was provided with the opportunity to provide medical evidence but did not do so. Accordingly, service connection and/or service connection for the purposes of treatment of a dental condition of the lower jaw is not warranted. TDIU Total disability ratings for compensation may be assigned where the Schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the U. S. Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16. Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. § 4.16(a). For the purposes of the one 60 percent or one 40 percent disability, disabilities of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. § 4.16(a)(1). The Veteran is already granted TDIU beginning September 4, 2019 based on the same evidence, the only difference being that, prior to September 4, 2019, the Veteran did not meet the schedular criteria. The Board has granted the claim for an additional 20 percent evaluation for neurological manifestations of the right ankle injury residuals, effective from May 29, 2007 to September 3, 2019. Thus, and with all due consideration of the amputation rule, for this time period, the Veteran had a combined evaluation of 60 percent, including bilateral factor, effective from May 29, 2007 to September 3, 2019 based on service-connected neurological manifestations of right ankle injury residuals evaluation as 20 percent disabling under Code 8522; orthopedic manifestations of right ankle injury residuals evaluated as 20 percent disabling under Code 5271; left foot degenerative disease with metatarsalgia chronic tendonitis and heel spurs under Code 5284; and right foot degenerative disease with metatarsalgia, chronic tendinitis and heel spurs under Code 5284. Bilateral hearing loss is also service connected from December 6, 2007 but evaluated as noncompensable. Because her compensable service-connected right ankle and bilateral feet disabilities are of the musculoskeletal system, they may be considered as a single disability under the criteria. Thus, the Veteran meets the schedular criteria for TDIU effective May 29, 2007. As to the factual inability to obtain and maintain substantial employment, the Veteran filed an application for TDIU in January 2008, in which she stated she was disabled as a result of an inability to stand or walk on her feet. She stated her feet affected full-time employment in February 2004, and that she became too disabled to work in May 2005. She reported a work history of 70 hours per week at owning/managing a bar from 2004 to 2006, of 50 hours per week as a self-employed horse trainer from 1999 to 2002 and 24 to 30 hours per week as a bartender in 2007. In terms of education or training, she reported two years of college and, before and after becoming disabled, work-training with the United States Departments for Immigration and Natural Services from 1980 until 1996 in computers, investigations, and other administrative duties. In November 2011, she testified that she was disabled as a result of the pain in her right ankle and feet, which rendered her unable to walk and caused difficulty with sitting and standing for any length of time. She testified she lost her job due to her disabilities, explaining that she was reprimanded for the amount of time she spent going to the doctor for treatment. In addition, she reported she used a wheelchair, and not many employers could accommodate it or the breaks she needed to shift positions. With the exception of the 2015 VA examination report, VA examiners prior to November 2020 did not find the Veteran’s service-connected right lower ankle disorders, albeit productive of significant functional impairment, rendered her unemployable. However, before November 2020, service connection was assigned only for the right ankle neurological and orthopedic disorders. It was not until November 2020 that service connection was granted for left and right foot degenerative disease with metatarsalgia, chronic tendinitis and heel spurs, and 20 percent evaluations were assigned, each, effective in May 2007. Accordingly, these disabilities were not considered in the previous VA examiners’ opinions and, as such, these opinions cannot be probative. Notwithstanding, the Board finds it has sufficient evidence to adjudicate the issue. When considering the now service-connected bilateral foot disorders in addition to the already service-connected right ankle neurological and orthopedic disorders prior to September 4, 2019, the medical evidence supports a finding of such functional impairment in the lower extremities to preclude sedentary as well as heavy and light duty work. In sum, her lower extremity symptoms include severe debilitating pain, pain on weight bearing, antalgic gait and an inability to walk, stand or sit for any length of time without discomfort. Throughout the time period on appeal, she was found to need assistive devices including braces, wheelchair, cane and walker at various levels of regularity throughout the time period, to ambulate. Any activity on her feet or sitting for too long was reported to cause flare-ups of pain. In 2014, the VA examiner assessed complete loss of ability to walk or stand bilaterally when considering flare-ups and after repetitive use. In 2015, the VA examiner for nerves found the Veteran unable to walk long distances, stand for more than five minutes or sit for a lengthy time. In 2019, the VA examiner opined that the Veteran would struggle significantly with tasks requiring anything more than a minimal amount of ambulation or standing time. While VA examiners ultimately found the Veteran’s right ankle disability not to be so severe as to be render functional capacity equivalent to amputation with a prosthesis, the disability picture overall establishes findings consistent with that beginning September 4, 2019 of unemployability. It is clear that the Veteran is unable to perform heavy and light duty employment due to her service-connected disabilities. Moreover, and given her need for assistive devices, frequent breaks and repositioning and inability to walk, sit or stand for any time period without assistive devices, frequent breaks and repositioning, her functional impairment due to both neurological and orthopedic service-connected disabilities of the lower extremities renders her unable to work in a sedentary setting also. According all benefit of the doubt to the Veteran, the medical evidence establishes the Veteran is factually unemployable from May 29, 2007. Accordingly, TDIU is warranted beginning May 29, 2007. As the grant of TDIU is not based on a single disability, but rather the combined effect of multiple conditions, it does not qualify as a “single service-connected disability rated as 100 percent…” and consideration of entitlement to special monthly compensation based on statutory housebound status is not warranted. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bakke, Lila J. 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.