Citation Nr: 21020943 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-21 196 DATE: April 8, 2021 ORDER An initial evaluation of 50 percent, but no higher, for a service-connected unspecified anxiety disorder with unspecified depressive disorder, is granted throughout the appeal period. For the entire period on appeal, an increased disability rating of 20 percent, but not greater, for a service-connected right ankle disability is granted. Entitlement to a TDIU is granted, effective April 14, 2015. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's service-connected unspecified anxiety disorder with unspecified depressive disorder more nearly approximated symptoms of occupational and a social impairment with reduced reliability and productivity. 2. For the entire appeal period, the Veteran's service-connected right ankle disability manifested with pain and loss or range of motion, without malunion of the tibia or fibula, ankylosis, malunion of the os calcis or astragalus, or an astragalectomy. 3. Since April 14, 2015, the Veteran has been unable to secure or maintain substantially gainful employment as a result of her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent, but no higher, for service-connected unspecified anxiety disorder with unspecified depressive disorder have been approximated throughout the appeal period. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9413. 2. Effective April 14, 2015, the criteria for the assignment of an increased disability evaluation of 20 percent, but no higher, for the Veteran's service-connected right ankle disability have been met. 38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271. 3. The criteria for a TDIU have been met effective April 14, 2015. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from August 1996 to May 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision from a Regional Office (RO) for the Department of Veterans Affairs (VA). In January 2020, the Veteran testified at a video conference hearing in Seattle, Washington before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims filed. In May 2020, the Board remanded the claims for further development, including examinations. A review of the record indicates the Veteran underwent all of the requested examinations for the issues currently before the Board. As such, after review of the record, the Board finds that there has been substantial compliance with the development sought as part of the May 2020 remand. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating 1. Increased rating for Anxiety Disorder. The Veteran contends that her service-connected anxiety disorder with an unspecified depressive disorder are more severe than the initially assigned 30 percent disabling evaluation assigned from April 14, 2015 to September 27, 2017, and more severe than the 50 percent assigned evaluation thereafter. After review of the evidence, both lay and medical, the Board finds that resolving all doubt in the Veteran's favor, the symptoms of the service-connected anxiety and depressive disorders more closely approximate a 50 percent disabling rating for the entire appeal period. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The service-connected anxiety disorder with unspecified depressive disorder is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code (DC or Code) 9413. Under this General Rating Formula, a 30 percent evaluation is provided for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. Finally, a total, or 100 percent, rating is awarded on evidence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The VA Secretary, acting within his authority to "adopt and apply a schedule of ratings," chose to create one General Rating Formula for Mental Disorders. 38 U.S.C. §§ 501, 1155; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (holding that "the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment"). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. After a full review of the record, the Board finds that the Veteran's psychiatric symptoms more nearly approximate the criteria for a 50 percent rating, but not higher, throughout the appeal period. Specifically, the evidence of record reflects that the Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: depression, anxiety, panic attacks more than once a week; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; and disturbances of motivation and mood. In April 2016, the Veteran underwent a VA examination to determine the etiology and severity of any mental health disabilities. She reported a depressed mood and anxiety that resulted in social isolation from time to time and irritability that resulted in conflict. The VA examiner diagnosed an unspecified anxiety disorder and unspecified depressive disorder and that the disabilities were too closely overlapping to discern. The VA examiner indicated the symptoms of the mental health disabilities included a depressed mood, anxiety, chronic sleep impairment, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The VA examiner indicated the Veteran’s unspecified anxiety disorder and unspecified depressive disorder resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. In June 2016, the April 2016 VA examiner conducted a review of the Veteran’s claims file and opined that the Veteran’s unspecified anxiety disorder and unspecified depressive disorder were at least as likely as not caused or aggravated by her military service. A July 2016 rating decision granted service connection for anxiety and depression evaluated at 30 percent disabling, effective April 14, 2015. The Veteran filed a notice of disagreement with the assigned evaluation and this appeal followed. In June 2017, the Veteran underwent an additional VA examination to determine the severity of the service-connected anxiety and depression. She reported a good relationship with her father and seeking mental health treatment every three to six months and denied any suicidal or homicidal ideations. The VA examiner diagnosed the Veteran with a stimulant use disorder and indicated it was in full remission with no functional impact. The VA examiner found the anxiety disorder and depression did not contribute to significant functional impact or stress. Finally, the VA examiner then indicated that a mental condition had been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. In September 2017, the Veteran underwent an additional VA examination to determine the severity of the service-connected anxiety and depression. She reported depression, anxiety, suspiciousness, memory loss for names of close relatives, and an intermittent inability to perform activities of daily living. She denied any suicidal ideations but reported calling the Veteran’s Crisis Line after dealing with another tenant where she was residing. She indicated that an individual from the Veteran’s crisis line was able to assist her. On examination, the Veteran was appropriately dressed and groomed, aware of time, place, and purpose, her speech was a normal rate and volume with a flattened affect and anxious mood. The VA examiner diagnosed an unspecified anxiety disorder and unspecified depressive disorder and indicated that it was impossible to differentiate the symptoms of the two conditions. The increased of symptoms included the inability to perform household chores, isolating herself, lack of motivation, sleeping too much and sometimes not at all, The VA examiner indicated that the service-connected depression and anxiety resulted in occupational and social impairment with reduced reliability and productivity In July 2020, the Veteran underwent an additional VA examination to determine the severity of the service-connected anxiety. She reported that she was easily stressed, described her mood as pretty good, The Veteran reported being with her current partner for 8 years and that things were going well and that she has a few friends that she feels connected to and supported by. She denied excessive worry, obsessive-compulsive behavior, auditory or visual hallucinations, paranoid ideation, suicidal ideation, and homicidal ideation, but did report thoughts of hitting people that she does not act on. The VA examiner further indicated the Veteran’s symptoms were minimal to mild and typically increase in correlation with external stressors and last 2 days to 2 weeks. On examination, the Veteran was casually dressed, polite, cooperative, her speech was normal, thoughts were linear, reality based, and otherwise unremarkable. The VA examiner diagnosed the Veteran with an unspecified anxiety disorder and unspecified depressive disorder and indicated that the symptoms co-exist and overlap significantly. The VA examiner indicated the diagnosed disabilities resulted in a depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty establishing and maintaining effective work and social relationships, and difficulty The VA examiner then indicated that the unspecified anxiety disorder and unspecified depressive disorder resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication and depression. VA treatment records, as well as lay testimony from the Veteran and supporting statements are consistent with the VA examinations of record. The Veteran has consistently reported varying periods of anxiety and depression, difficulty sleeping, and varying social difficulties. At the outset, the Board again notes that the rating of psychiatric disorders is ultimately based upon their resultant level of occupational and social impairment. 38 C.F.R. § 4.130; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (2013). The evaluation, however, is symptom-driven, meaning that the symptomatology should be the fact-finder's primary focus in determining the level of occupational and social impairment. Vazquez-Claudio, 713 F.3d at 116-17. This includes consideration of the frequency, severity, and duration of those symptoms. 38 C.F.R. § 4.126(a); Id., 713 F.3d at 117. Significantly, however, the symptoms enumerated in the rating criteria are merely examples of those that would produce such level of impairment; they are not exhaustive, and VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Id., 713 F.3d at 115; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the Board finds that the Veteran suffers from symptoms of similar severity, frequency, and duration that cause occupational and social impairment equivalent to that which would be produced by the specific symptoms enumerated in the rating criteria, then the appropriate equivalent rating will be assigned. 38 C.F.R. § 4.21; Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Based on the foregoing, the Board finds the evidence supports a 50 percent evaluation throughout the appeal period. Specifically, throughout the period on appeal the Veteran had difficulty sleeping, irritability, and social difficulties. Thus, resolving all doubt in the Veteran's favor, the Board finds an increased 50 percent evaluation is warranted throughout the appeal period. The Veteran's symptoms do not more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood to warrant a higher 70 percent evaluation. Although the Veteran reported symptoms including impaired sleep, some social isolation, irritability, and depression, those symptoms were not of such frequency and severity to result in occupational and a social impairment with deficiencies in most areas to warrant a 70 percent rating under Diagnostic Code 9411. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (stating that use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating). The criteria for a 70 percent rating includes symptoms such as obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence) spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships, and suicidal ideation. 38 C.F.R. § 4.130. Throughout the appeal period the Veteran never presented with obsessional rituals; speech that was intermittently illogical, obscure, or irrelevant; near-continuous panic or depression that affected the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene. Rather, the treating physicians and examiners consistently reported her speech was logical and she was always oriented in all spheres and described as appropriately dressed. Additionally, the Veteran was not noted to have suicidal or homicidal ideations at any point during the appeal period. During the July 2020 VA examination the Veteran endorsed that she had thoughts of hitting people but did not endorse any homicidal ideation. Similarly, VA treatment records throughout the appeal period contain no documentation of obsessional rituals, speech that was intermittently illogical, obscure, or irrelevant; near-continuous panic or depression that affected the ability to function independently, spatial disorientation, or neglect of personal appearance and hygiene. Further, the symptoms the Veteran had during this period (difficulty sleeping, irritability, some social isolation, and anger) have not been so frequent and disabling to result in deficiencies in most areas. Specifically, while Veteran reported anxiety and irritability, at no point did she endorse obsessional rituals, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control, neglect of personal appearance and hygiene, or the inability to establish and maintain effective relationships. On mental status examination, insight and judgement have been described as good or intact and thought content was always within normal limits. Accordingly, the Board finds an evaluation in excess of 50 percent is not warranted. 2. Service-Connected Right Ankle Strain. The Veteran contends that her service-connected right ankle sprain is more severe than the 10 percent disabling evaluation assigned from April 14, 2015 (date of the Veteran’s intent to file) to July 21, 2020, and more severe than the 20 percent assigned evaluation thereafter. The Board also notes a period of 100 percent disability following a surgery from August 25, 2017 to October 1, 2017, which will not be disturbed. After review of the evidence, both lay and medical, the Board finds that resolving all doubt in the Veteran's favor, the symptoms of the service-connected right ankle disability more closely approximate a 20 percent disabling rating for the entire appeal period. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Disability evaluations are based upon 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. See 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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, 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of the veteran's disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the severity of a disability, the Board is required to consider the potential application of various other VA regulations, regardless of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability. See 38 C.F.R. §§ 4.1, 4.2; see also Schafrath, 1 Vet. App. at 595. Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran's disability exhibits symptoms that warrant the application of different ratings. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). However, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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. See 38 C.F.R. § 4.40. It is essential that the examination on which disability ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. See id. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. See id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. See id. The evaluation of joint disabilities must involve the following factors: less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination and impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity, or atrophy of disuse. See 38 C.F.R. § 4.4. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing must also be considered. See id. A rating based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology. See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). Functional loss caused by pain must be rated as though it were caused by another factor, such as deformity, atrophy, adhesions, or any of the other factors cited above. See Schafrath, 1 Vet. App. at 592. In rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See id. Painful motion is an important factor of disability, and facial expressions such as wincing exhibited in the presence of pressure on or manipulation of the affected joints should be carefully noted and definitely related to the affected joints. See 38 C.F.R. § 4.59. Actually painful, unstable, or malaligned joints due to healed injury are at the very least entitled to the minimum compensable rating for the affected joint. See id. Crepitation within the joint structures or the soft tissues, such as the tendons or ligaments, should be noted carefully as points of contact which are diseased, and flexion elicits such manifestations. See id. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. See id. When adjudicating disabilities evaluated based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment must be applied, and examinations must assess whether the disability at issue manifested weakened movement, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Such inquiry should not be limited to muscles or nerves, and, if feasible, these determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. See id. In order to constitute functional loss, pain must affect some aspect of the normal working movements of the body, such as excursion, strength, speed, coordination and endurance. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Although pain may cause functional loss, pain itself does not constitute functional loss and is merely one factor to be considered when evaluating functional impairment. See id. However, 38 C.F.R. § 4.40 does not require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). Once the evidence has been assembled in the record, it is the Board's responsibility to evaluate the evidence. See 38 U.S.C. § 7104(a). The Board shall consider all competent lay and medical evidence of record, analyze the credibility and probative value of the evidence, and provide reasons for rejecting any favorable material evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and its credibility, a factual determination regarding its probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt, see 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, and where the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the claim in order to warrant its denial. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). Diagnostic Codes (DC) 5262 and 5270 through 5274 set forth the relevant provisions for disabilities of the ankle. See 38 C.F.R. § 4.71a. DC 5262 provides that impairment of the tibia and fibula characterized by malunion with slight knee or ankle disability warrants a 10 percent evaluation, malunion with moderate knee or ankle disability warrants a 20 percent evaluation, and malunion with marked knee or ankle disability warrants a 30 percent rating. Impairment of the tibia and fibula manifested by nonunion with loose motion, requiring a brace, warrants a maximum 40 percent rating. See id. DC 5270 governs ankylosis of the ankle and provides a 20 percent rating for ankylosis in plantar flexion, less than 30 degrees; a 30 percent rating for ankylosis in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees; and a 40 percent rating 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. See id. DC 5271 governs limited motion of the ankle, providing respective ratings of 10 and 20 percent for moderate or marked limited motion of the ankle. See id. DC 5272 governs ankylosis of the subastragalar or tarsal joint, providing a 10 percent rating for a good weight-bearing position, and a 20 percent rating for a poor weight-bearing position. See id. DC 5273 governs the malunion of the os calcis or astragalus, providing a 10 percent rating for a moderate deformity, and a 20 percent rating for a marked deformity. See id. DC 5274 provides a 20 percent rating for an astragalectomy. See id. The Board notes that the criteria for the evaluation of musculoskeletal disabilities in the VA Rating Schedule have been amended effective February 7, 2021 (the 2021 Regulations); therefore, claims filed on or after February 7, 2021, must be evaluated under the 2021 Regulations. See 85 Fed. Reg. 76453-76469 (November 30, 2020); 85 Fed. Reg. 85523-85524 (December 29, 2020). In this case, although the Veteran’s spinal claims were filed prior to February 7, 2021, to the extent that the periods on appeal relating to such claims extend beyond February 7, 2021, such claims must be evaluated under both the prior regulations and the 2021 Regulations, and the set of criteria most favorable to the Veteran must be applied. See Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003). Effective February 7, 2021, DC 5271 was amended to clarify that 10 percent is warranted for moderate limited motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) and a 20 percent evaluation is warranted for marked limited motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). DC 5262 continued to note that impairment of the tibia and fibula with nonunion with loose motion requiring a brace warranted a 40 percent rating. For malunion, the condition should be evaluated under DC 5256, 5257, 5260 or 5261 for the knee or 5270 or 5271 for the ankle. For impairment of the tibia and fibula with medial tibial stress syndrome or shin splints ratings a noncompensable rating is warranted for treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted for when treatment of no less than 12 consecutive months and unresponsive to either shoe orthotics or other conservative treatment, one or both extremities. A 20 percent is warranted for treatment of no less than 12 consecutive months and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent is warranted for treatment of no less than 12 consecutive months and unresponsive to surgery and either shoe orthotics or other conservative treatment, both extremities. The assignment of a particular DC depends upon the facts of each particular case, and the Board is authorized to choose an appropriate DC that is supported by both the evidence of record and a sufficiently articulated rationale. See Butts v. Brown, 5 Vet. App. 532, 538-39 (1993). Moreover, service connection for a disability is not severed when the DC assigned to that disability is revised in order to more accurately reflect the veteran's relevant medical history, diagnoses, and demonstrated symptomatology. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). In this case, a July 2016 rating decision continued a 10 percent evaluation for the service-connected right ankle and an August 2020 rating decision granted an increased rating to 20 percent for right ankle sprain under DC 5271 from July 21, 2020. However, the Veteran contends that his service-connected ankle disability warrants an increased disability rating in excess of 20 percent evaluation throughout the appeal period and for the reasons set forth below, the Board agrees. After careful review, the Board finds that for the entire period on appeal, the evidence of record demonstrates that the Veteran's service-connected right ankle disability manifests a marked limitation of range of motion, thereby warranting a 20 percent disability rating under DC 5271, but not greater, as 20 percent is the maximum rating available under DC 5271, and the evidence of record does not reflect an impairment of the tibia or fibula (DC 5262), ankylosis (DC 5270 and DC 5272), malunion of the os calcis or astragalus (DC 5273), or an astragalectomy (DC 5274). The Veteran underwent multiple VA examinations throughout the appeal period. An April 2016 VA examination revealed normal range of motion. However, the Veteran reported flare-ups and intermittent pain with frequent swelling. She further reported going to the emergency room in February 2016 and being referred to podiatry in March 2016 and was prescribed antiinflammatory medication and a CAM boot to steady the ankle. The VA examiner noted that pain limited inversion in the right ankle and that there was pain on plantar flexion. The VA examiner indicated it would require speculation to determine any functional loss in the right ankle during a flareup. In June 2017, the Veteran underwent an additional VA ankle examination. Range of motion testing was normal in the ankle. The examiner noted objective evidence of pain on passive range of motion and pain on non-weight bearing testing. There was no ankylosis in the right ankle. In July 2020, the Veteran underwent an additional VA examination. She reported chronic right ankle pain and swelling and one to two re-sprain injuries per year. The Veteran reported flare-ups with overuse and exertion two to three times per week lasting two to four days. Range of motion testing revealed dorsiflexion of 5 degrees and plantar flexion of 40 degrees with pain that caused functional loss and crepitus that was unchanged after repetitive testing. The VA examiner specifically indicated that there was no ankylosis of the right ankle. VA treatment records show continued treatment for the right ankle throughout the appeal period. A February 2016 emergency department note indicated the Veteran arrived by ambulance complaining of right ankle sharp, intermittent pain, at a 9 out of 10 that was worse with movement. Imaging studies were normal, and the Veteran was placed in an ACE bandage and discharged. A March 2016 podiatry note showed reported pain in the ankle of 7 out of 10 and that the Veteran was prescribed orthotics. Mild edema was noted in the right ankle with tendonitis an instability. A June 2017 podiatry note showed persistent acute right ankle pain for three weeks. The VA physician noted a history of steroid injections for the right ankle. In August 2017, the Veteran underwent right ankle stabilization surgery. During a November 2018 podiatry treatment, the Veteran continued to report sharp, stabbing, right ankle pain at a 6 out of 10. The lay evidence, including the January 2020 Board hearing are consistent with the medical evidence of record. Specifically, the Veteran has continued to report pain in the right ankle that is made worse by standing and walking. In consideration of the foregoing evidence, including the findings of right ankle plantar flexion limited to 40 degrees and dorsiflexion limited to 5 degrees, the Board finds that for the entire period on appeal, the Veteran's service-connected right ankle disability warrants the maximum 20 percent rating under DC 5271 for marked limitation of motion. Generally, as stated above, where a veteran's claim involves rating the severity of a joint disability based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40, 4.45 pertaining to functional impairment must be applied in order to determine whether the disability at issue manifested weakened movement, excess fatigability, or incoordination. See DeLuca, 8 Vet. App. at 205-07. However, in this case, because the Board has awarded the Veteran the maximum schedular rating under DC 5271 of 20 percent, consideration of functional loss due to pain under 38 C.F.R. §§ 4.40 , 4.45 and accompanying case law is not required, as any finding of pain on motion could not result in a higher rating. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board has also considered whether the Veteran's service-connected right ankle disability warrants the assignment of a higher rating under other diagnostic codes at any point during the period on appeal. See Schafrath, 1 Vet. App. at 595. However, because the record contains no evidence of an impairment of the tibia or fibula (DC 5262), ankylosis (DC 5270 and DC 5272), malunion of the os calcis or astragalus (DC 5273), or an astragalectomy (DC 5274), the Board finds that no additional disability ratings are warranted in this case. In light of the Veteran's report of flareups during his examinations, the Board has also considered whether a remand would be appropriate to obtain a more current evaluation of the Veteran's right ankle disability in furtherance of his claim. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 C.F.R. § 3.159(c)(4), (d). However, because DC 5271 provides a maximum 20 percent rating which has been awarded herein, the Board finds that there can be no basis upon which to award the Veteran's right ankle disability an evaluation in excess of 20 percent for limitation of motion. See 38 C.F.R. § 4.71a. Accordingly, because a remand for a re-evaluation of the Veteran's flareups would provide no additional benefit to the development of the Veteran's right ankle disability claim and would result only in imposing unnecessary additional burdens on VA with no benefit flowing to the Veteran, the Board finds that a remand is not required in this case, and VA's duty to assist with respect to obtaining a VA examination or opinion has been met. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Accordingly, in consideration of the foregoing evidence and resolving all reasonable doubt in the Veteran's favor, the Board finds that a 20 percent rating for the Veteran's service-connected right ankle disability under DC 5271 is warranted in this case. 3. TDIU The Veteran contends that she is unable to secure or maintain employment due to his service-connected disabilities. In April 2015, the Veteran filed an intent to file followed by a formal claim for a TDIU in March 2016. A May 2019 rating decision granted a TDIU effective October 1, 2017, therefore, the Board will only address the period from April 14, 2015 to October 1, 2017. After review of the evidence, both lay and medical, the Board finds that the Veteran's service-connected disabilities have prevented her from maintaining substantially gainful employment since April 14, 2015. A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability or disabilities to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Thus, a TDIU may still be awarded in such instances where a veteran's employment is deemed to be "marginal employment," because she cannot engage in more lucrative "substantially gainful employment." Where reasonably raised by the facts of a particular case, the Board must consider and expressly state whether the Veteran would be able to obtain or maintain a substantially gainful occupation - or, put another way, whether the Veteran is capable of more than "marginal employment." See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. See 38 C.F.R. § 4.17(a) (2017). Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. For pension cases, VA has listed examples of what can constitute marginal employment a self-employed farmer, a small business owner, a contractor, a person who works odd jobs, or a person employed at less than half the usual remuneration (payment received for usual employment). See 38 C.F.R. § 4.17(a). This type of work can be compatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. Id. Thus, whether the current Veteran qualifies for TDIU by way of a finding of "marginal employment" is contingent upon finding that she does so in a protected/family workshop status. An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). The central inquiry is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In the determination, VA may not consider non-service-connected disabilities or advancing age. 38 C.F.R. §§ 3.341, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Unlike VA's 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 circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, a TDIU analysis must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); see Friscia v. Brown, 7 Vet. App. 294, 295-97 (1994); Beaty v. Brown, 6 Vet. App. 532, 534 (1994); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991). In adjudicating a TDIU claim, VA must consider the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see 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). After a review of the evidence of record and after resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-disabilities have prevented her from securing and following substantially gainful employment throughout the appeal period. As an initial matter, throughout the entire appeal period, the Veteran has been service-connected for an anxiety and depressive disorder, evaluated at 50 percent, residuals of left foot blunt trauma, evaluated at 20 percent, right ankle sprain, evaluated at 20 percent, and a surgical scar evaluated at a noncompensable rating. Her combined evaluation has been 70 percent throughout the entire appeal period and the Veteran has met the schedular requirements for a TDIU rating under 38 C.F.R. § 4.16(a). Next, the Board finds the record supports that the Veteran was engaged in marginal employment throughout the appeal period. Specifically, the totality of the evidence establishes that the Veteran's highest earnings for one year was $6,000, which is below the poverty threshold. Therefore, a TDIU is warranted here based on the Veteran's ability to only work in marginal employment part-time due to her service-connected disabilities. In particular, with regard to evidence in support of a TDIU, the Veteran has credibly reported that she was working part-time for a temp agency and in an inconsistent manner where she may only work for days out-of-the-month and then not work for periods of time during the appeal period. Regarding the Veteran's employment history, the Board observes that she completed high school, two years of college, and obtained a medical assistant certificate. During the January 2020 Board hearing, she further reported that she does not possess adequate computer skills. Turning to the symptoms of the Veteran's service connected disabilities that would prevent her from obtaining employment in line with her educational and occupational history, the Board notes the Veteran has consistently reported that her left foot, right ankle, and anxiety disorder impact her ability to maintain substantially gainful employment. The VA foot and ankle examinations and treatment records consistently show pain on weight bearing with both disabilities. The medical evidence is consistent with and supports the lay evidence of record that the Veteran’s foot and ankle disabilities preclude her from maintaining substantially gainful employment. Similarly, the lay and medical evidence difficulty in crowds including panic attacks. The VA examiner indicated that the PTSD impacted most areas of the Veteran's life, including work. The VA treatment notes and lay testimony provided by the Veteran are consistent with the VA examinations of record. Ultimately, the Board affords significant probative value to the professional opinions regarding the impairment the Veteran's left foot, right ankle, and anxiety disorder symptoms would have on her employment, as well as her lay testimony. Accordingly, the Board finds that an award of TDIU based on the combined effects of the Veteran's service-connected left foot, right ankle, and anxiety disorder is warranted as her symptoms would prevent her from obtaining a position corresponding with her education level and employment history. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In sum, the Board find the combined effects of the service-connected disabilities has prevented the Veteran from maintaining substantially gainful employment since April 14, 2015. Neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.