Citation Nr: 21014274 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-12 420 DATE: March 11, 2021 ORDER Effective July 27, 2017, a 20 percent rating for right ankle disability, status-post fibula fracture, is granted. An initial rating in excess of 10 percent prior to July 27, 2017, for right ankle disability, status-post fibula fracture, is denied. A total disability rating based on individual unemployability (TDIU) prior to January 25, 2019, is denied. FINDINGS OF FACT 1. The right ankle disability results in range of motion more nearly approximating marked limitation of motion from July 27, 2017; prior to July 27, 2017, it results in no more than moderate limitation of motion. It never results in mal- or nonunion of the tibia and fibula, ankylosis, or leg length discrepancy of at least 3.2 centimeters. 2. The service-connected disabilities did not render the Veteran unemployable prior to January 25, 2019. CONCLUSIONS OF LAW 1. Effective July 27, 2017, the criteria for a rating of 20 percent for right ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 2. Prior to July 27, 2017, the criteria for an initial rating in excess of 10 percent for the right ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 3. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from December 1969 to December 1971, to include service in the Republic of Vietnam, from November 1970 to May 1971, and at Camp Lejeune, from February 1970 to September 1970. This matter was previously before the Board, most recently in December 2020. In a December 2020 rating decision, VA determined that the effective date for the grant of service connection for the right ankle disability should be November 2, 1972. The Board will consider entitlement to an increased rating from that date. VA also granted a TDIU effective January 25, 2019. The Veteran has not withdrawn his appeal for a TDIU prior to that date; thus, the Board will consider entitlement to a TDIU prior to January 25, 2019. 1. Right Ankle Disability Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. The left ankle disability is rated under Diagnostic Codes 5271. Diagnostic Code 5271 provides a 10 percent rating for moderate limitation of motion of the ankle and a 20 percent rating for marked limitation of motion of the ankle. Normal range of motion of the ankle is 20 degrees dorsiflexion and 45 degrees plantar flexion. The recent amendments added language clarifying that “marked” limitation of motion equaled less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and that “moderate” limitation of motion equaled less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. VA treatment records reveal findings of “full” or “good” range of motion in all joints/extremities in 2006, 2009, 2010, 2011, 2012, and 2013 and a finding of no pain with motion of the ankle in November 2016. A May 1973 VA examination record indicates that examination was negative for abnormality of the extremities other than the left femur. A July 2017 VA examination record reports 10 degrees dorsiflexion and 10 degrees plantar flexion. There was pain with active and passive motion but no pain with weight-bearing or with nonweight-bearing. There was no change in range of motion after repetition. The examiner was unable to state whether pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over time or flares. A March 2020 VA examination record reports dorsiflexion to 15 degrees and plantar flexion to 35 degrees, including after repetition. There was no pain on passive or active motion or with or without weight-bearing. There was no change in range of motion after repetition, and the examiner stated that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time. The examiner reported that flares would limit dorsiflexion to 10 degrees and plantar flexion to 20 degrees. Resolving all doubt in favor of the Veteran, the Board finds a 20 percent rating is warranted under Diagnostic Code 5271 effective July 27, 2017, the date of the VA examination that showed limitation of plantar flexion to 10 degrees, a history of flares, and the examiner’s inability to quantify the effect of the reported flares. The Board notes that as 20 percent is the highest schedular rating for limitation of motion of the ankle, the regulatory provisions (38 C.F.R. §§ 4. 40, 4.45) pertaining to functional loss are not for application. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board has considered Correia v. McDonald, 28 Vet. App. 158 (2016), which holds that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, given the Veteran is receiving the maximum rating based on limitation of motion of the thoracolumbar spine, and a higher rating requires unfavorable ankylosis of the entire spine, there is no prejudice in any VA examination failing to comply with § 4.59 as interpreted in Correia. The Board finds a rating in excess of 10 percent is not warranted at any time prior to July 27, 2017. Notably, VA treatment records prior to July 27, 2017, consistently reveal findings of “full” or “good” range of motion, and there is no clinical evidence suggestive of marked limitation of motion of the right ankle. There is also no lay evidence of marked limitation of motion of the right ankle during this period. Notably, the Veteran reported that the condition had worsened at the time of his 2017 VA examination, which indicates that previously his motion would be more analogous to moderate limitation at worst. In sum, the Board finds the evidence does not suggest that the right ankle disability resulted in more than moderate limitation of motion including during flares or after repetitive use during this period. Again, motion is generally “good,” and the Board finds any episodic limitation of function is contemplated by the rating for “moderate” limitation, particularly as the record is absent a history of episodes of severe or “marked” impairment during this period. The Board finds the overall disability picture created by the record suggests function too significant to approximate “marked” limitation of motion during this period. The Board has considered whether a separate or higher rating is warranted under an alternate diagnostic code under the “old” or “new” rating criteria. There is no evidence of ankylosis of the ankle, and although the Veteran initially sustained a fracture to the fibula, there is no clinical evidence of malunion or nonunion of the tibia and fibula which could warrant application of the “old” Diagnostic Code 5262. Additionally, although the record includes the 2017 VA examiner’s findings of leg length discrepancy (a finding not corroborated in the 2020 VA examination record), the record indicates that the discrepancy does not reach or more nearly approximate the length required for a separate compensable rating under Diagnostic Code 5275. 2. TDIU A TDIU may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), a TDIU nevertheless may be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. Such cases are referred to the Director of the VA Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The Veteran reported being unable to work due to the aggregate impact of his high blood pressure and diabetes on his initial application. See April 2013 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). He has also reported inability to continue working due to his lower extremity disorders. He reported that he last worked full-time in August 2009 and became too disabled to work in August 2012. A December 2009 VA treatment record reveals the Veteran’s history that he worked construction when work was available and that he last worked one month earlier. The Veteran has not contended that his fulltime employment was marginal or in a protected environment, and the Board finds there is no probative evidence to that effect. The Board finds the Veteran is gainfully employed prior to August 2009; the Board will consider entitlement to a TDIU from August 2009 to January 25, 2019. Prior to January 25, 2019, service connection is in effect for the right ankle disability, diabetes mellitus type 2 (from October 25, 2010), peripheral neuropathy of the lower extremities (from October 25, 2010, to November 1, 2015), diabetic retinopathy (from April 29, 2013), and insomnia disorder (from April 29, 2013). The combined rating for the Veteran’s service-connected disabilities never meets the schedular criteria for entitlement to a TDIU set forth in 38 C.F.R. § 4.16(a) prior to January 25, 2019. The Board finds the probative evidence does not show that the service-connected disabilities rendered the Veteran unable to obtain or maintain substantially gainful employment so that referral would be warranted for the applicable period prior to January 25, 2019. The record indicates that the Veteran has a high school education, was self-employed in construction for approximately 36 years, last working as a construction supervisor, and had training in brick masonry and concrete. VA examination and treatment records do not include findings of unemployability, and the Board finds the record does not suggest that such a finding would be warranted. Although the records indicate that there was limitation of the Veteran’s occupational functioning, the record indicates that at least some of that limitation is due to nonservice connected disabilities such as knee arthritis, and the Board finds the Veteran’s range of motion and functioning prior to January 25, 2019, is too significant to approximate the preclusion of occupational functioning. Specifically, the Board finds the service-connected disabilities would not preclude sedentary or light manual labor, and the Board notes that the Veteran has previous supervisory experience. The Board finds it notable that the TDIU is granted effective the effective date of service connection for right upper extremity neuropathy and the return of service connection for the lower extremity neuropathies. In sum, the Board finds that although the service-connected disabilities result in impairment or “limitation” of occupational functioning, the preponderance of the probative evidence shows that the Veteran’s service-connected disabilities have not rendered the Veteran unable to obtain or maintain substantially gainful employment and thus referral to the Director, Compensation Service, for extraschedular consideration, is not warranted. The Board has considered the doctrine of reasonable doubt in reaching this decision as well but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Thus, the claim is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.