Citation Nr: 21021749 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-58 640 DATE: April 13, 2021 ORDER From October 5, 2012, a rating of 20 percent, but not higher, for a left ankle disorder is granted. Prior to September 14, 2017, a total disability rating based on individual unemployability (TDIU) is denied.   FINDINGS OF FACT 1. From October 5, 2012, the Veteran’s left ankle disorder was manifested by marked limitation of motion, to include pain, swelling and significant limited motion. Ankylosis has not been shown. 2. Prior to September 14, 2017, the Veteran was not prevented from securing and following substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. From October 5, 2012, the criteria for a rating of 20 percent, but not higher, for a left ankle disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5271. 2. Prior to September 14, 2017, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to October 1970. The case is on appeal from a November 2013 rating decision. In October 2018, the Veteran testified at a Board hearing. In October 2018, the Board remanded the claims for an increased rating for the left ankle disability and a TDIU for further development. While the case was in remand status, in an October 2020 rating decision, the RO increased the left ankle rating to 20 percent effective August 6, 2019. The increased rating matter remains in appellate status as the maximum rating has not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Also while the case was in remand status, in a December 2020 rating decision, the RO granted a TDIU from September 14, 2017. The Board finds the issue of a TDIU prior to September 14, 2017, remains on appeal in conjunction with the claim for an increased left ankle rating. Once entitlement to a TDIU is part of a claim for an increased rating and the RO grants a TDIU which does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. From October 5, 2012 to August 5, 2019, a rating in excess of 10 percent for the left ankle disorder, and in excess of 20 percent thereafter. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). The Veteran’s left ankle disorder is rated under 38 C.F.R. § 4.71a, DC 5271, for limitation of motion of the ankle. Under DC 5271, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). A maximum 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). The Board notes VA revised the rating criteria for evaluating ankle disorders, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). Generally, a change in rating criteria during the pendency of the claim applies prospectively, if more favorable. Here, the changes to DC 5271 essentially defined “moderate” and “marked” in terms of range of motion. This change in the rating criteria has no impact on the Veteran’s left ankle rating and does not impact the Board’s decision other than clarifying the criteria. A rating for an ankle disability may be assigned a rating higher than 20 percent under DC 5270, if ankylosis is present. Under DC 5270, a 30 percent rating is warranted for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between zero degrees and 10 degrees. A maximum 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. Disabilities of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Facts The Veteran submitted an October 2012 claim for an increased left ankle rating in excess of 10 percent. Along with his claim, he submitted a statement which indicated he has very limited motion, constant pain and swelling. He stated he further experiences fatigue, weakness, and flare-ups of his left ankle, and was not able to remain gainfully employed due to the disability. The Veteran was afforded an October 2013 VA examination in which he reported flare-ups, including increased pain and swelling, flare-ups that last one hour and an inability to ambulate during flares. Range of motion testing revealed left ankle plantar flexion limited to 10 degrees with painful motion beginning at 10 degrees and dorsiflexion limited to 20 degrees or greater with painful motion beginning at 15 degrees. The examiner indicated following repetitive testing, the Veteran’s plantar flexion was limited to 30 degrees and dorsiflexion was limited to 15 degrees. The examiner found the Veteran has functional impairment of the left ankle, including less movement than normal, weakened movement, excess fatigability, pain on movement and swelling. The examiner reported no instability or ankylosis of the left ankle. The functional impact on the Veteran’s ability to work included walking limited to one hour and a quarter mile at a time, with no limit on lifting, sitting and standing. The Veteran submitted a February 2014 statement in which he requested an additional VA examination to support his increased rating claim. The Veteran was afforded a September 2016 VA examination. He reported no flare-ups of the left ankle. Range of motion testing showed normal range of motion and that the pain noted during the examination did not result in functional loss. The examiner indicated the Veteran was not examined immediately after repetitive use and that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. No ankylosis was found and no instability. Further, the examiner reported the left ankle disorder has no functional impact on the Veteran’s ability to work. The Veteran was afforded an October 2018 Board hearing in which he reported his left ankle disability had progressively worsened. He stated he has trouble standing up, sitting too long and that he experiences increased swelling. He reported his ankle moves but that he requires constant support, including from a cane. He indicated the left ankle disorder impacts his activities of daily living, such as cooking and bathing and that his standing is severely limited. The claim was remanded by the Board in October 2018 for a VA examination to determine the severity of the disorder. VA treatment records reflect that the Veteran was examined in April 2019. The examiner noted no flare-ups reported. Range of motion testing revealed left ankle plantar flexion limited to 30 degrees and dorsiflexion limited to 15 degrees. The examiner indicated there was no ankylosis and the functional impact limited the Veteran to standing and walking less than 45 minutes. The Veteran was afforded an August 2019 VA examination in which no flare-ups were reported. Range of motion testing revealed left ankle plantar flexion limited to 25 degrees and dorsiflexion limited to 5 degrees with pain noted during testing. Factors that cause functional loss include pain, fatigue, weakness, lack of endurance and incoordination. Following repetition, dorsiflexion was further reduced to zero degrees and plantar flexion was reduced to 15 degrees. The examiner noted symptoms of swelling, instability, disturbance of locomotion and interference with standing. No ankylosis was reported. The functional impact on the Veteran’s ability to work included limited running, jumping, prolonged ambulation, prolonged standing and high impact activities. Further, the examiner reported the presence of pain with weight bearing, non-weight bearing and during passive range of motion. Analysis After careful review of the evidence, the Board determines the Veteran’s left ankle disorder more closely approximated marked limitation of motion from October 5, 2012. Thus, an increased rating to 20 percent is warranted for the left ankle disorder for the entire appeal period. The Board notes this is the maximum rating available for the left ankle disability, absent ankylosis. 38 C.F.R. § 4.71a, DC 5271. Throughout the appeal period, the Veteran reported severely limited left ankle movement, as well as pain, fatigue, weakness and swelling. Additionally, the medical evidence of record supports that the Veteran’s left ankle exhibited marked limitation of motion, approximating less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, when factoring in his functional loss. Moreover, the October 2013 VA examiner found left ankle plantar flexion limited to 10 degrees and dorsiflexion limited to 20 degrees. She stated the Veteran experiences less movement than normal, weakened movement, excess fatigability, painful movement and swelling. The Board notes the September 2016 examiner found less severe restrictions, including normal range of motion. However, that opinion appears less indicative of the Veteran’s symptoms and restrictions, as he reported during the October 2018 Board hearing that he has difficulty standing, sitting too long and experiences increased swelling. Further, the August 2019 VA examination report indicated left ankle plantar flexion limited to 25 degrees and dorsiflexion limited to 5 degrees, with further reduced motion after repetition of plantar flexion to 15 degrees and dorsiflexion to zero degrees. Thus, the evidence supports a maximum 20 percent rating under DC 5271 is warranted from October 5, 2012, when affording the Veteran all reasonable doubt. As noted, this is the highest schedular rating for limited motion of the ankle, and there is no basis to award a higher rating without the presence of ankylosis, which has not been shown. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). In sum, the Board finds a 20 percent rating is warranted for the left ankle disorder from October 5, 2012, particularly when affording the Veteran reasonable doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Prior to September 14, 2017, a TDIU. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 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 to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In addition, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director’s decision in the first instance before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The finding of the Director is a decision akin to the RO rather than an opinion to be used as evidence. Id. at 239. 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 nonexertional) 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 work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Facts The Veteran contends he is unable to work due to his service-connected disabilities prior to September 14, 2017. As addressed above, the December 2020 rating decision granted a TDIU from September 14, 2017. However, the Board will review the evidence to determine if the Veteran was prevented from securing and following a substantially gainful occupation due to his service-connected disabilities prior to September 14, 2017. The RO’s grant of a TDIU did not span the entire period on appeal for the left ankle disability. Thus, the issue of entitlement to a TDIU prior to September 14, 2017, remains on appeal. See Harper, 30 Vet. App. at 356. The Board notes the Veteran meets the schedular criteria from September 14, 2017. 38 C.F.R. § 4.16(a). In light of the current decision, the Veteran’s left ankle rating has been increased to 20 percent effective October 5, 2012. Despite this increase, the Veteran does not meet the schedular criteria prior to September 14, 2017, and therefore, his TDIU claim is considered based on an extraschedular basis. 38 C.F.R. § 4.16. In the most recent August 2019 TDIU application, the Veteran reported being unable to work due to his back condition, which is not service-connected, as well as severe peripheral nerve damage. He reported he previously worked as a mechanic and laborer, and he last worked full-time and became too disabled to work in September 2009. His education included graduating high school. The Board notes records received from the Social Security Administration (SSA) indicate he last worked full-time as a mechanic in December 2010. The Veteran was afforded a July 2010 VA examination for his left ankle and thigh in which he reported he was working as a mechanic and farmhand. He stated he had to quit his job due to his inability to walk for prolonged periods of time or carry heavy objects because of pain in the left hip, leg and back. The examiner noted the Veteran is able to perform the usual activities of daily living, such as dress and undress, as well as attending to the needs of nature. The Veteran was afforded a December 2010 VA examination in which the examiner indicated his left leg disorder caused decreased mobility and strength, as well as lower extremity pain. The examiner reported the disorders impact the Veteran’s daily activities, including minimal effects on chores, travel and driving, and moderate effects on exercise and recreation. A January 2011 statement was submitted from G.G. which indicated the Veteran had always been outgoing and able to maintain employment. He stated he worked with the Veteran at Anderson County Maintenance Shop from November 1, 2010 through December 17, 2010 and during this time the Veteran was unable to perform his daily work duties. Further a January 2011 statement from the Veteran’s spouse indicated he was no longer able to work since he was not able to stand for long periods of time. She stated he cannot shop by himself and can no longer do yardwork or maintain a job. The Veteran was afforded a February 2011 VA examination in which the examiner found there are no functional limitations on the Veteran’s ability to stand or walk. He underwent a July 2012 VA examination in which the examiner reported the left ankle disorder impacts his ability to work, as it causes difficulty walking and standing. The Veteran was afforded an October 2013 VA examination in which the examiner stated his left ankle disability impacts his ability to walk, limited to one hour in duration and a quarter mile at a time. She reported there is no limitation on the Veteran’s ability to lift, sit and stand. The Veteran was afforded a September 2016 VA examination in which the examiner found the Veteran’s left ankle disorder has no functional impact on his ability to work. In an October 2017 VA examination related to the Veteran’s left thigh disabilities, the examiner reported the condition impacts his ability to work. She stated the disorders limit the Veteran’s ability to stand and walk for prolonged periods of time. During the October 2018 Board hearing, the Veteran reported he worked as a mechanic and his let leg disorders prevent him from getting up and down and performing the duties of a mechanic. He stated he cannot squat down. The Veteran indicated his left leg conditions cause impaired stability and he requires a cane constantly. As noted, the Board remanded the claim in October 2018, including for a medical opinion to comment on the combined functional limitation on employment of the Veteran’s left ankle and left thigh/femur disabilities. Thereafter, the August 2019 examiner indicated the Veteran’s service-connected left thigh and ankle disorders have negatively affected his ability to function in an occupational environment. The examiner reported he is unable to lift or carry objects greater than a 16 ounce bottle of water, as he has to ambulate with a cane. She noted the Veteran is unable to effectively carry objects that require two hands. The examiner stated he is unable to climb stairs, sit for periods greater than 10 minutes at a time and ambulate short distances without rest. She indicated he is severely limited in climbing, running, bending, squatting and standing for long periods of time. Analysis The Board finds that the Veteran’s service-connected disabilities did not prevent him from securing or maintaining all substantially gainful employment prior to September 14, 2017. While the Veteran’s service-connected left ankle and left femur/thigh disabilities, as well as tinnitus, caused occupational impairment, such disorders did not prevent the Veteran from securing and following all substantially gainful employment prior to September 14, 2017. The Board acknowledges that the Veteran has reported being unemployable since September 2009 and additionally, SSA records show he stopped working full-time as a mechanic in December 2010. Further, prior to September 2017, his left leg and ankle disorders caused pain, decreased mobility and strength, as well as restricted standing and walking which would make employment difficult. However, the evidence of record, including the VA examination reports during the appeal period, suggests he was not prevented from working in all substantially gainful employment solely due to his service-connected disabilities until September 14, 2017. While January 2011 statements from G.G. and the Veteran’s spouse suggest his left leg and ankle disorders prevented him from working, the medical evidence obtained thereafter does not support that his service-connected disabilities alone prevented all substantially gainful employment prior to September 2017. The February 2011 VA examiner found there are no functional limitations on the Veteran’s ability to stand or walk. The July 2012 VA examiner stated the left ankle disorder causes difficulty walking and standing. Further, the October 2013 VA examiner stated the Veteran’s left ankle disability impacts his ability to walk, limited to one hour in duration, and the September 2016 VA examiner reported the disorder has no functional impact on his ability to work. The Board notes in the August 2019 TDIU application, the Veteran listed his back disorder as a condition which prevents employment and as noted, this disorder is not service connected. Therefore, prior to September 14, 2017, the medical evidence does not support that the Veteran is prevented from securing and following all substantially gainful employment due to his left ankle and left femur/thigh disabilities. The Board is sympathetic to the Veteran’s assertions regarding the impact his service-connected disabilities had on him prior to September 14, 2017, both professionally and personally. The Board acknowledges that working as a mechanic and laborer requires physical duties to effectively perform the positions. However, the problems the Veteran experienced to his left ankle and leg prior to September 14, 2017, are compensated by the schedular ratings assigned for such disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while the left ankle and left femur/thigh disabilities have caused some economic impairment, his assigned disability ratings, including the increase in the present decision, contemplated his level of occupational impairment. A TDIU claim is not purely a medical question. Here, the Board has considered both the relevant medical evidence, as well as the non-medical evidence such as work history, education and lay evidence. In sum, the preponderance of the evidence is against the claim and the Veteran was not prevented from securing and following all substantially gainful employment as a result of his service-connected disabilities prior to September 14, 2017. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, a TDIU is not warranted prior to September 14, 2017. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.