Citation Nr: 21014648 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-44 626 DATE: March 15, 2021 ORDER A rating in excess of 30 percent for left leg fracture residuals (characterized as left tibia, fibula, and medial malleolus fracture residuals with left mid-calf muscle atrophy and left knee limitation of flexion and non-lateral instability) is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) for the period from January 11, 2013 (but no earlier) through December 30, 2018 is granted. FINDINGS OF FACT 1. For the entire evaluation period, the Veteran’s left leg fracture residuals are shown to have been manifested by malunion of the tibia and fibula with marked knee or ankle disability when considering additional functional loss due to painful motion, repeated use over time, and flare-ups; and his left leg fracture residuals are not shown to have manifested in nonunion of the tibia and fibula, ankylosis of the knee, limitation of extension of the knee, or ankylosis of the ankle (in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity) at any time during the evaluation period. 2. During the one-year period prior to VA receiving the Veteran’s January 11, 2013 increased rating claim, his service-connected posttraumatic stress disorder (PTSD) was rated 50 percent and his other service-connected disabilities (including his left leg fracture residuals) brought his combined rating to only 50 percent; it is not factually ascertainable by the evidence of the record that an increase in his service-connected disabilities occurred during this one-year period prior to VA’s receipt of the January 11, 2013 increased rating claim to show that such disabilities first precluded him from obtaining or maintaining substantially gainful employment during that period. 3. For the entire period from January 11, 2013 through December 30, 2018, it is reasonably shown that the Veteran’s service-connected PTSD (rated 50 percent prior to October 18, 2017 and rated 70 percent from October 18, 2017), as well as his other service-connected disabilities including his left leg fracture residuals (bringing his combined rating to 70 percent since January 11, 2013 and to 90 percent since October 18, 2017) precluded him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. A rating in excess of 30 percent for left leg fracture residuals (characterized as left tibia, fibula, and medial malleolus fracture residuals with left mid-calf muscle atrophy and left knee limitation of flexion and non-lateral instability) is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5262 (2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5262). 2. From January 11, 2013 (but no earlier) through December 30, 2018, the schedular requirements for a TDIU rating are met, and a TDIU rating is warranted for that period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400(o)(2), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to April 1970. On January 11, 2013, the Veteran filed the current claim for an increased rating for his service-connected left leg fracture residuals. In a November 2013 rating decision, the Agency of Original Jurisdiction (AOJ) granted an increased rating for such disability (characterized as left tibia, fibula, and medial malleolus fracture residuals) of 10 percent, effective January 11, 2013 (i.e., the date VA received the current increased rating claim). In a December 2013 notice of disagreement (NOD), the Veteran appealed the rating assigned for his service-connected left leg fracture residuals. In a March 2016 rating decision and accompanying March 2016 statement of the case (SOC), the AOJ granted an increased rating for such disability (still characterized as left tibia, fibula, and medial malleolus fracture residuals) of 20 percent, effective January 11, 2013 (i.e., the date VA received the current increased rating claim). The Veteran filed a VA Form 9 in May 2016 to perfect his appeal of the rating assigned for his service-connected left leg fracture residuals. In a December 2017 rating decision, the AOJ granted an increased rating for such disability (still characterized as left tibia, fibula, and medial malleolus fracture residuals) of 30 percent, effective October 18, 2017 (i.e., the date VA received a VA Form 526EZ from the Veteran). In December 2018, the Board issued a decision by another Veterans Law Judge that (in pertinent part) denied a rating in excess of 20 percent (prior to October 18, 2017) and a rating in excess of 30 percent (from October 18, 2017) for left leg fracture residuals (characterized as left tibia, fibula, and medial malleolus fracture residuals). The Veteran appealed that portion of the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court issued an Order that (in pertinent part) vacated the December 2018 Board decision with regard to the issue of a rating in excess of 20 percent (prior to October 18, 2017) and a rating in excess of 30 percent (from October 18, 2017) for left leg fracture residuals (characterized as left tibia, fibula, and medial malleolus fracture residuals), and remanded that matter for readjudication consistent with instructions outlined in an October 2019 Joint Motion for Partial Remand by the parties. In September 2020, the increased rating issue for the Veteran’s service-connected left leg fracture residuals was remanded by a different Veterans Law Judge for additional development. The Board also found that the issue of entitlement to a TDIU rating had been raised in the context of the Veteran’s increased rating claim for left leg fracture residuals on appeal (per Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the TDIU rating issue for the period prior to December 31, 2018 (as a TDIU rating had already been awarded effective December 31, 2018 in an August 2020 rating decision) as being inextricably intertwined with the increased rating claim being remanded at that same time. See Harper v. Wilkie, 30 Vet. App. 356 (2018). In a January 2021 rating decision, the AOJ granted an increased rating for the Veteran’s service-connected left leg fracture residuals (now characterized as left tibia, fibula, and medial malleolus fracture residuals with left mid-calf muscle atrophy and left knee limitation of flexion and non-lateral instability) of 30 percent, effective January 11, 2013 (i.e., the date VA received the current increased rating claim). Because this award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The case has now been assigned to the undersigned Acting Veterans Law Judge. 1. Entitlement to a rating in excess of 30 percent for left leg fracture residuals (characterized as left tibia, fibula, and medial malleolus fracture residuals with left mid-calf muscle atrophy and left knee limitation of flexion and non-lateral instability). Generally, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate “staged” ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). For musculoskeletal disabilities (such as the left leg fracture residuals addressed below), in determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The Veteran’s left leg fracture residuals are rated under DC 5262. Effective February 7, 2021, VA revised the criteria for rating disabilities of the musculoskeletal system and muscle injuries. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5262). Because the current increased rating claim for the Veteran’s left leg fracture residuals stems from a claim received by VA on January 11, 2013 (as outlined above), the Board is required to consider the claim in light of both the former and revised schedular criteria in order to determine whether a higher rating is warranted for that disability. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C. § 5110(g). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. Under the version of DC 5262 in effect prior to February 7, 2021, the following criteria are provided for rating impairment of the tibia and fibula. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring brace. 38 C.F.R. § 4.71a, DC 5262 (2020). Under the version of DC 5262 which became effective on February 7, 2021, the following criteria are provided for rating impairment of the tibia and fibula. Malunion of the tibia and fibula is to be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or under DCs 5270 or 5271 for the ankle, whichever results in the highest evaluation. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring brace. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5262). Under DC 5256 (which was not changed by VA’s rating criteria revisions effective as of February 7, 2021), the following criteria are provided for ankylosis of the knee. A 30 percent rating is warranted for ankylosis with favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is warranted for ankylosis in flexion between 10 degrees and 20 degrees. A 50 percent rating is warranted for ankylosis in flexion between 20 degrees and 45 degrees. A 60 percent rating is warranted for ankylosis which is extremely unfavorable, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256 (2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5256). Under both applicable versions of DC 5257 (i.e., the version in effect prior to February 7, 2021 and the version which became effective on February 7, 2021), a 30 percent rating [i.e., equal to the Veteran’s current 30 percent rating under DC 5262] is the maximum schedular rating provided for other impairment of the knee (including recurrent subluxation, lateral instability, and patellar instability). 38 C.F.R. § 4.71a, DC 5257 (2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257). Under DC 5260 (which was not changed by VA’s rating criteria revisions effective as of February 7, 2021), a 30 percent rating [i.e., equal to the Veteran’s current 30 percent rating under DC 5262] is the maximum schedular rating provided for limitation of flexion of the leg. 38 C.F.R. § 4.71a, DC 5260 (2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5260). Under DC 5261 (which was not changed by VA’s rating criteria revisions effective as of February 7, 2021), the following criteria are provided for limitation of extension of the leg. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261 (2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5261). Under DC 5270 (which was not changed by VA’s rating criteria revisions effective as of February 7, 2021), the following criteria are provided for ankylosis of the ankle. A 30 percent rating is warranted for ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. A 40 percent rating is warranted for 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. 38 C.F.R. § 4.71a, DC 5270 (2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5270). Under both applicable versions of DC 5271 (i.e., the version in effect prior to February 7, 2021 and the version which became effective on February 7, 2021), a 20 percent rating [i.e., less than the Veteran’s current 30 percent rating under DC 5262] is the maximum schedular rating provided for limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271 (2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5271). As noted above, the Veteran filed the current claim for an increased rating for his service-connected left leg fracture residuals on January 11, 2013. Therefore, for purposes of this appeal, the evaluation period begins on January 11, 2012 (i.e., one year prior to the date his claim was received by VA). For the entire evaluation period, the Veteran’s left leg fracture residuals are shown to have been manifested by malunion of the tibia and fibula with marked knee or ankle disability when considering additional functional loss due to painful motion, repeated use over time, and flare-ups; and his left leg fracture residuals are not shown to have manifested in nonunion of the tibia and fibula, ankylosis of the knee, limitation of extension of the knee, or ankylosis of the ankle (in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity) at any time during the evaluation period. The pertinent evidence of record is outlined in detail below. A May 2013 VA treatment record noted the Veteran’s reports of left leg pain, uneven leg length (with the left leg longer than the right leg), and left ankle instability, and a Ritchie brace and shoe heel lifts were ordered. [The Board notes that the Veteran is separately service-connected for leg length discrepancy with genu varum, and such disability is not a part of the current appeal.] At a June 2013 VA knee and lower leg examination, it was noted that the Veteran wore a brace on his left leg for support, but no nonunion of the tibia and fibula was indicated. His left knee range of motion measured from 0 degrees of extension to 140 degrees of flexion with no objective evidence of painful motion, and measured from 0 degrees of extension to 135 degrees of flexion after three repetitions. The Veteran did not report any knee flare-ups, and no knee ankylosis was indicated. At a June 2013 VA ankle examination, it was noted that the Veteran wore a left ankle brace constantly, but no nonunion of the tibia and fibula was indicated. His left ankle range of motion measured to 35 degrees of plantar flexion (with painful motion beginning at 30 degrees) and to 10 degrees of dorsiflexion (with painful motion beginning at 10 degrees), but with no additional range of motion loss after three repetitions. The Veteran did not report any ankle flare-ups, and it was noted that he did not have any ankle ankylosis. At a December 2015 VA knee and lower leg examination, it was noted that the Veteran wore a brace on his left leg for support, but no nonunion of the tibia and fibula was indicated. His left knee range of motion measured from 0 degrees of extension to 120 degrees of flexion with no pain noted on examination, and with no additional range of motion loss after three repetitions. The Veteran did not report any knee flare-ups, and it was noted that he did not have any knee ankylosis. At a March 2016 VA ankle examination, it was noted that the Veteran wore a left ankle brace continuously, but no nonunion of the tibia and fibula was indicated. His left ankle range of motion measured to 30 degrees of plantar flexion and to 10 degrees of dorsiflexion with pain noted on examination not causing functional loss, and with no additional range of motion loss after three repetitions. Regarding the question of additional functional loss due to repeated use over time, the VA examiner described this in terms of additional range of motion loss as being 0 to 30 degrees for plantar flexion and 0 to 10 degrees for dorsiflexion. The Veteran described having ankle flare-ups as follows: “It flare[s] up everyday when I get up and it lasts for four to five minutes, and I have to stand for a little bit before I take off” – but he reported being able to continue with activities. Regarding the question of additional functional loss due to flare-ups, the VA examiner indicated being unable to describe this in terms of additional range of motion loss because the Veteran was not being examined during a flare-up. No ankle ankylosis was indicated. At a November 2017 VA knee and lower leg examination, it was noted that the Veteran regularly used a brace, but no nonunion of the tibia and fibula was indicated. His left knee range of motion measured from 0 degrees of extension to 70 degrees of flexion with pain noted on examination causing functional loss, but with no additional range of motion loss after three repetitions. It was also noted that there was objective evidence of pain on passive range of motion testing of the left knee, but no evidence of pain on non-weight-bearing testing of the left knee. Regarding the question of additional functional loss due to repeated use over time, the VA examiner indicated being unable to describe this in terms of additional range of motion loss because there was “no change on exam[.]” The Veteran described having knee flare-ups as follows: “The flare-ups of the left knee can be described as painful[,] hard to walk or stand[.]” Regarding the question of additional functional loss due to flare-ups, the VA examiner indicated being unable to describe this in terms of additional range of motion loss because there was “no change on exam[.]” It was noted that the Veteran did not have any knee ankylosis. At a November 2017 VA ankle examination, it was noted that the Veteran regularly used a brace, but no nonunion of the tibia and fibula was indicated. His left ankle range of motion measured to 5 degrees of plantar flexion and to 5 degrees of dorsiflexion with pain noted on examination causing functional loss, but with no additional range of motion loss after three repetitions. It was also noted that there was objective evidence of pain on passive range of motion testing of the left ankle, as well as objective evidence of pain on non-weight-bearing testing of the left ankle. Regarding the question of additional functional loss due to repeated use over time, the VA examiner indicated being unable to describe this in terms of additional range of motion loss because there was “no change on exam[.]” The Veteran described having ankle flare-ups as follows: “The flare-ups of the left ankle can be described as very painful[,] unable to walk on it[.]” Regarding the question of additional functional loss due to flare-ups, the VA examiner indicated being unable to describe this in terms of additional range of motion loss because there was “no change on exam[.]” It was noted that the Veteran did not have any ankle ankylosis. At a January 2019 VA knee and lower leg examination, no use of a brace was noted, and no nonunion of the tibia and fibula was indicated. The Veteran’s left knee range of motion measured from 0 degrees of extension to 60 degrees of flexion with pain noted on examination causing functional loss, but with no additional range of motion loss after three repetitions. It was also noted that there was objective evidence of pain on passive range of motion testing of the left knee (with his passive range of motion measurements noted as being the same as his active range of motion measurements), as well as objective evidence of pain on non-weight-bearing testing of the left knee. Regarding the question of additional functional loss due to repeated use over time, the VA examiner indicated that the Veteran did not have such loss. The Veteran described having knee flare-ups as follows: “[W]orsening pains and fatigue[.]” Regarding the question of additional functional loss due to flare-ups, the VA examiner indicated that the Veteran did not have such loss. It was noted that the Veteran did not have any knee ankylosis. At an April 2019 VA ankle examination, it was noted that the Veteran wore a left ankle brace constantly, but no nonunion of the tibia and fibula was indicated. His left ankle range of motion measured to 15 degrees of plantar flexion and to 10 degrees of dorsiflexion with pain noted on examination not causing functional loss, and measured to 10 degrees of plantar flexion and to 10 degrees of dorsiflexion after three repetitions. It was also noted that there was objective evidence of pain on passive range of motion testing of the left ankle (with his passive range of motion measuring to 25 degrees of plantar flexion and to 10 degrees of dorsiflexion), but no objective evidence of pain on non-weight-bearing testing of the left ankle. Regarding the question of additional functional loss due to repeated use over time, the VA examiner described this in terms of additional range of motion loss as being 0 to 10 degrees for plantar flexion and 0 to 10 degrees for dorsiflexion. The Veteran described having ankle flare-ups as follows: “Like bending and stooping, I get down and it’s hard to get back up. I have pain in the side of my leg and foot. I have like burning and tingling in there which might have something to do with my neuropathy but then it might be my ankle, too.” Regarding the question of additional functional loss due to flare-ups, the VA examiner described this in terms of additional range of motion loss as being 0 to 10 degrees for plantar flexion and 0 to 10 degrees for dorsiflexion. It was noted that the Veteran did not have any ankle ankylosis. Pursuant to the Board’s September 2020 remand (responding to the October 2019 Joint Motion for Partial Remand), the Veteran was scheduled for a new VA knee and lower leg examination in January 2021. At that examination, no use of a brace was noted, and no nonunion of the tibia and fibula was indicated. The Veteran’s left knee range of motion measured from 0 degrees of extension to 55 degrees of flexion with pain noted on examination causing functional loss, but with no additional range of motion loss after three repetitions. It was also noted that there was no objective evidence of pain on passive range of motion testing of the left knee, as well as no objective evidence of pain on non-weight-bearing testing of the left knee. Regarding the question of additional functional loss due to repeated use over time, the VA examiner described this in terms of additional range of motion loss as being from 0 degrees of extension to 25 degrees of flexion. The Veteran did not report any knee flare-ups, and therefore the VA examiner did not address the question of additional functional loss due to flare-ups. It was noted that the Veteran did not have any knee ankylosis. Also pursuant to the Board’s September 2020 remand (responding to the October 2019 Joint Motion for Partial Remand), the Veteran was scheduled for a new VA ankle examination in January 2021. At that examination, it was noted that the Veteran wore a left ankle brace constantly, but no nonunion of the tibia and fibula was indicated. His left ankle range of motion measured to 5 degrees of plantar flexion and to 5 degrees of dorsiflexion with pain noted on examination causing functional loss, but with no additional range of motion loss after three repetitions. It was also noted that there was objective evidence of pain on passive range of motion testing of the left ankle, as well as objective evidence of pain on non-weight-bearing testing of the left ankle. Regarding the question of additional functional loss due to repeated use over time, the VA examiner described this in terms of additional range of motion loss as being 0 to 0 degrees for plantar flexion and 0 to 0 degrees for dorsiflexion. The Veteran did not report any ankle flare-ups, and therefore the VA examiner did not address the question of additional functional loss due to flare-ups. It was noted that the Veteran did not have any ankle ankylosis. As described above, the pertinent evidence during the evaluation period shows that the Veteran’s left leg fracture residuals are shown to have been manifested by malunion of the tibia and fibula with marked knee or ankle disability when considering additional functional loss due to painful motion, repeated use over time, and flare-ups, but with no nonunion of the tibia and fibula, no ankylosis of the knee, no limitation of extension of the knee, and no ankylosis of the ankle (in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity) identified at any time during the evaluation period. While the above evidence shows that the Veteran has consistently worn a brace on his left ankle, there is no evidence to show that he has had nonunion of the tibia and fibula at any time to warrant a 40 percent rating under either applicable version of DC 5262. See 4.71a, DC 5262 (2020); see also Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5262). In addition, while the January 2021 VA ankle examiner indicated that additional functional loss due to repeated use over time of the Veteran’s left ankle would result in additional range of motion loss as being 0 to 0 degrees (i.e., zero motion) for plantar flexion and 0 to 0 degrees (i.e., zero motion) for dorsiflexion, the Board finds that these findings are inconsistent with the other findings at this examination of no additional range of motion loss after three repetitions and no ankle ankylosis. However, even if such range of motion loss due to repeated use over time were to be interpreted as being equivalent to a finding of ankylosis in the left ankle, the Board notes that such ankylosis is not shown to have been manifested in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity at any time to warrant a 40 percent rating under either applicable version of DC 5270. See 38 C.F.R. § 4.71a, DC 5270 (2020); see also Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5270). Accordingly, the Board finds that a rating in excess of 30 percent is not warranted at any time during the evaluation period for the Veteran’s left leg fracture residuals (characterized as left tibia, fibula, and medial malleolus fracture residuals with left mid-calf muscle atrophy and left knee limitation of flexion and non-lateral instability). See 38 C.F.R. § 4.71a, DC 5262 (2020); see also Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5262); see also Francisco, 7 Vet. App. at 55, 58; see also Hart, 21 Vet. App. at 505. 2. Entitlement to a TDIU rating prior to December 31, 2018. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. Neither the Veteran’s nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that a Veteran is unable to obtain or follow a substantially gainful occupation as a result of service-connected disabilities and has a single service-connected disability ratable at 60 percent or more, or two or more service-connected disabilities when one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability or disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The effective date of an award based on a claim for increase is generally the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Such a determination will be made on the basis of the facts found. 38 C.F.R. § 3.400(a). An exception to this rule provides that the effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. On a December 2018 VA Form 21-8940 (Veteran’s Application for Increased Compensation based on Unemployability), the Veteran asserted that he was prevented from securing or following any substantially gainful occupation due in part to his service-connected left leg, left eye, and PTSD disabilities. As such, the Board has found that he has raised the issue of a TDIU rating in the context of the increased rating claim on appeal for left leg fracture residuals for the entire evaluation period. See Rice, 22 Vet. App. at 447. As noted above, the Veteran filed the current claim for an increased rating for his service-connected left leg fracture residuals on January 11, 2013. Therefore, for purposes of this appeal, the evaluation period begins on January 11, 2012 (i.e., one year prior to the date his claim was received by VA). Because the Veteran is already in receipt of a TDIU rating effective beginning on December 31, 2018, the current issue before the Board is whether he is entitled to a TDIU rating during the evaluation period prior to December 31, 2018 (i.e., from January 11, 2012 through December 30, 2018). During the one-year period prior to VA receiving the Veteran’s January 11, 2013 increased rating claim (i.e., from January 11, 2012 through January 10, 2013), the Veteran did not meet the schedular criteria for a TDIU rating. During such period, he was service-connected for PTSD (rated 50 percent), and his other service-connected disabilities (left leg fracture residuals, rated 0 percent; left eye traumatic cataract with corneal scar, rated 0 percent; and residuals of burns of the bilateral feet, rated 0 percent) brought his combined rating to only 50 percent. See 38 C.F.R. § 4.16(a). In addition, it is not factually ascertainable by the evidence of the record that an increase in his service-connected disabilities occurred during this one-year period prior to VA’s receipt of the January 11, 2013 increased rating claim to show that such disabilities first precluded him from obtaining or maintaining substantially gainful employment during that period. Specifically, the medical evidence throughout this period does not show such an increase in any of his service-connected disabilities during that timeframe, and the Veteran himself has asserted that he has not worked full-time since either 1995 (as noted on the VA Form 21-8940 he submitted in December 2018 and another he submitted in January 2019) or 1996 (as noted on a VA Form 21-8940 he submitted in August 2020). For the entire period from January 11, 2013 through December 30, 2018, the Veteran met the schedular criteria for a TDIU rating. During such period, he was service-connected for PTSD (rated 50 percent prior to October 18, 2017 and rated 70 percent from October 18, 2017), and his other service-connected disabilities (left leg fracture residuals, rated 30 percent; left eye traumatic cataract with corneal scar, rated 20 percent; leg length discrepancy with genu varum, rated 0 percent prior to October 18, 2017 and rated 20 percent from October 18, 2017; residuals of burns of the bilateral feet, rated 0 percent; and surgical scar from left ankle open reduction internal fixation, rated 0 percent effective October 18, 2017) brought his combined rating to 70 percent since January 11, 2013 and to 90 percent since October 18, 2017. See 38 C.F.R. § 4.16(a). Furthermore, for the entire period from January 11, 2013 through December 30, 2018, it is reasonably shown that the Veteran’s service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment consistent with his work history and education. Specifically, the evidence of record (including the VA Form 21-8940 forms submitted by the Veteran in December 2018, January 2019, and August 2020, as noted above) reflects that the Veteran completed at least two years of high school and then obtained a GED, and that he last worked full-time as a railroad welder in either 1995 or 1996. In a July 2020 vocational assessment report, a private vocational rehabilitation consultant outlined a detailed review of the pertinent evidence of record, and then provided the following opinion: “[I]n my vocational opinion, it is at least as likely as not that [the Veteran] has been unable to secure and follow substantially gainful employment, in any occupation regardless of skill or exertional level, due to his service-connected fracture residuals of left tibia, fibula, and medial malleolus with muscle atrophy of the left lower extremity, left mid-calf; left knee flexion impairment and non-lateral instability; leg length discrepancy with genu varum; PTSD; and traumatic cataracts of the left eye with corneal scar since at least January 2013 to the present.” For rationale, the private consultant noted that the Veteran had stopped working in 1996, discussed the pertinent findings outlined in the Veteran’s VA examination reports during this period with regard to his service-connected disabilities, and concluded: “My opinion is supported by the medical evidence of record alone. Lay evidence [including the Veteran’s own self-reported limitations due to his service-connected disabilities] and my vocational interview with the [V]eteran only further substantiate my opinion.” Accordingly, the Board finds that a TDIU rating is warranted for the period from January 11, 2013 (but no earlier) through December 30, 2018. See 38 U.S.C. § 5110(b)(2); see also 38 C.F.R. §§ 3.400(o)(2), 4.16(a). Under 38 U.S.C. § 1114(s)(1) and 38 C.F.R. § 3.350(i)(1), special monthly compensation (SMC) is payable if a Veteran has a single service-connected disability rated as 100 percent disabling, and has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. While the instant decision is now granting the Veteran a TDIU rating for the period from January 11, 2013 through December 30, 2018, this instant TDIU award is based on a combination of disabilities (i.e., PTSD rated at 50 percent prior to October 18, 2017 and rated at 70 percent from October 18, 2017 and his other service-connected disabilities including his left leg fracture residuals bringing his combined rating to 70 percent since January 11, 2013 and to 90 percent since October 18, 2017). Therefore, the Board finds that the requirements for SMC have not been met at any time during the evaluation period. A.M. CLARK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. B. Yantz, Counsel The Board’s decision in this case is binding only with respect to the instant matters decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.