Citation Nr: 21021825 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 11-31 160 DATE: April 14, 2021 ORDER Entitlement to extra-schedular disability ratings in excess of 20 percent for service-connected bilateral ankle disabilities is denied. Entitlement to a separate compensable rating or ratings for neurological disability, to include nerve impairment, as secondary to service-connected bilateral ankles denied. REMANDED Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral ankle disability is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle. 2. At all times pertinent to the current appeal, the schedular criteria have been adequate to evaluate the Veteran’s service-connected ankle disabilities. 3. The preponderance of the evidence of record weighs against finding that the Veteran has had a neurological disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for service-connected recurrent left ankle sprain on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.159. 2. The criteria for service connection for a separate compensable rating or ratings for neurological disability, to include nerve impairment, as secondary to service-connected bilateral ankles are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from July 1985 to April 1987. This case is before the Board of Veterans’ Appeals (Board) from August 2009, September 2009 (bilateral ankles), and February 2010 (TDIU) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2014, the Board denied increased schedular ratings in excess of 20 percent for the right and left ankle disabilities. The Board remanded the claim for TDIU for a Statement of the Case (SOC) and remanded the issues of TDIU and extra-schedular consideration for review by the Director of VA’s Compensation and Pension Service. In a September 2014 decision, the Board vacated the prior denial of the increased rating claims and remanded the claims to afford the Veteran a hearing before the Board. The Veteran was afforded a hearing in August 2016, before a Veterans’ Law Judge who is no longer with the Board. By a September 2017 Board decision, the claim for increased rating of bilateral ankle disability was denied, and the issues of an extraschedular rating for bilateral ankle disability, a separate rating for neuropathy as secondary to the ankle disability, and TDIU were remanded. The Veteran requested another hearing on the issues and appeared before the undersigned Veterans’ Law Judge at a January 2021 hearing. Referred Issues: During his January 2021 hearing, the Veteran provided testimony that his service-connected bilateral ankle disability resulted in an inability to exercise causing obesity, diabetes, and obstructive sleep apnea (1/27/2021 Hearing Transcript, pgs. 5 and 8). Obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155. However, obesity may be an intermediate step between a service-connected disability and a current disability that may be connected on a secondary basis. VAOPGCPREC 1-2017 (January 6, 2017). The record has raised the issues of entitlement to diabetes and obstructive sleep apnea, as secondary to his service-connected bilateral ankle disabilities, both with obesity as an intermediary step. These issues have not adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for development or other action as appropriate. 38 C.F.R. § 20.104. 1. Extra-schedular disability ratings in excess of 20 percent for service-connected bilateral ankle disabilities. The Veteran contends his ankle disability has increased in severity, describing increased pain, resulting in difficulty walking and balance issues (6/26/2009 VA 21-4138 Statement In Support of Claim; 1/20/2010 VA 21-4138 Statement In Support of Claim) The Veteran’s ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Board notes that portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021. Diagnostic Code 5271 was amended. Prior to the February 7, 2021 regulatory change, Diagnostic Code 5271 provided a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. The regulatory changes to Diagnostic Code 5271 added degrees to describe loss of range of motion associated with marked and moderate limitation of motion of the ankle. Marked is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and rated at 20 percent. A rating of 10 percent is assigned for moderate limitation of motion: less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this case, the Veteran is currently assigned a 20 percent disability rating, and under either version of the regulation 20 percent is the highest schedular rating for limited motion of the ankle. Accordingly, the changes do not impact the Veteran’s claim. The question for the Board remains whether the Veteran is entitled to extraschedular rating for his bilateral ankle disability. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. In March 2014 the Veteran’s range of motion was measured as planter flexion, 10 degrees with painful motion beginning at 5 degrees and 10 degrees dorsiflexion, with painful motion beginning at 5 degrees. For the left ankle, planter flexion was measured at 5 degrees with painful motion also beginning at 5 degrees, and dorsiflexion, 10 degrees, with painful motion beginning also at 10 degrees. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board has considered the Veteran’s described flareups, use of assistive devices, specifically including the regular use of braces on both ankles and use of a cane, described difficulty driving, as well treatment discussions regarding the possibility of ankle fusion in the future. Additionally, taking into account range of motion limitation due to pain, the Veteran has not described functional impairment beyond that contemplated by diagnostic code 5271. The Board finds the Veteran’s complaints of pain and other symptoms impacting his range of motion are adequately contemplated by the schedular rating criteria. Although Diagnostic Code 5271 does not specifically list all the Veteran’s complaints of various symptoms, including pain with prolonged standing, stumbling and falling, trouble with stairs, trouble walking, that the Veteran attributes to his ankle disabilities (1/27/2021 Hearing Transcript), such difficulties are reasonably contemplated and anticipated with range of motion limitations, which are listed under Diagnostic Code 5271. The medical evidence of record does not suggest ankylosis, warranting a higher disability rating pursuant to Diagnostic Code 5270. In that regard the Board has considered the Veteran’s statement acknowledging ankylosis is not present, stating he nonetheless has problems standing (11/13/2013 VA 21-4138 Statement In Support of Claim). The Veteran has not described, nor does the medical evidence of record suggest, symptomatology analogous to ankylosis. The Board has also revisited other schedular criteria. The Board has also considered whether any other Diagnostic Codes related to disabilities of the ankle, both before and after the February 2021 amendments, would provide for a higher disability rating. However, a higher rating under Diagnostic Code 5272 or 5273 is not possible, as the Veteran is already assigned a 20 percent disability rating. See 38 C.F.R. § 4.71a. In summary, the Board finds the Veteran’s ankle manifestations are reasonably and most appropriately contemplated by Diagnostic Code 5271, the threshold issue under Thun is not met, therefore further consideration of an extraschedular rating for bilateral ankle disabilities is not warranted. 2. Entitlement to separate compensable rating or ratings for neurological disability, to include nerve impairment, as secondary to service-connected bilateral ankles. The Veteran has claimed he has a neurological disability secondary to his service connected ankle disability, described as numbness in his feet, neuropathic pain, tingling in feet ascending to the knees (1/27/2021 Hearing Transcript, pg. 10, 11/24/2018 CAPRI, pg. 131, 10/04/2017 CAPRI, pg. 126). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a neurological disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Turning to the medical evidence of record, a June 2009 treatment note includes a neurological assessment that the Veteran’s neurology was intact bilaterally. A November 2016 treatment note reflects a normal study with no electrodiagnostic evidence of generalized peripheral neuropathy. A March 2017 neurologic assessment revealed no sensory deficits, with the Veteran’s gait characterized as stable. The Veteran was afforded a December 2017 VA examination. After an in-person examination and review of the Veteran’s records, the examiner found the Veteran did not have a peripheral nerve condition or peripheral neuropathy, stating no neurological disability was identified. A March 2018 addendum opinion was obtained, and the examiner reiterated that the physical exam yielded no physical findings consistent with sural nerve or any other lower extremity peripheral nerve pathology, noting the electromyographies were normal. While the Veteran believes he has a current diagnosis of neuropathy, the record does not suggest that he is competent to provide a diagnosis or nexus opinion in this case. The issue is medically complex, as it requires interpretation of diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence of record. The Board has also considered the Veteran’s argument that VA medical records have recorded a positive Tinel's sign suggesting the neuropathic symptoms are related to his ankle disability as opposed to diabetic in origin. In that regard the Board finds the March 2018 addendum opinion more probative. The examiner clarified the Veteran did not have positive Tinel's sign in December 2017. Taken in conjunction with the other probative medical evidence of record, the addendum opinion weighs against a finding of a current diagnosis of neuropathy in this case. The addendum opinion also addressed the medical journal evidence of record, providing, while interesting, the relevance to this case was unclear. The Board concurs. The Board has also considered the precedential opinion United States Court of Appeals for the Federal Circuit (Court) of Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018), with regard to whether the Veteran’s pain as described creates a functional impairment to establish the presence of a disability of neuropathic pain. A review of the lay and medical evidence of record suggests the Veteran’s functional impairment results from his service-connected ankle disability as opposed to the pain associated with this claim. Accordingly, the Board finds the claimed pain does not reaches the level of a functional impairment of earning capacity warranting qualification as a disability. In light of the forgoing, the Board finds the most probative evidence of record weighs against a finding of a current disability. As the first element of service connection is not met, the Veteran’s claim of entitlement to separate compensable rating or ratings for neurological disability, to include nerve impairment, as secondary to service-connected bilateral ankles is denied. REASONS FOR REMAND 3. TDIU The Veteran also seeks assignment of TDIU, based on his assertion that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. The Veteran's service-connected disabilities are left and right ankle arthritis, status post sprain, each at 20 percent disabling. The Veteran's combined disability rating, taking into account the bilateral factor of 3.6 percent, is 40 percent and, with the exception of two periods of 100 percent rating for convalescence post-surgery, has been throughout the appeals period. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled, notwithstanding the fact that the assigned schedular ratings do not equal 60 percent for a single disability or 70 percent for a combined disability. 38 C.F.R. § 4.16 (b). Thus, if a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating should be considered if the Veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16 (b). Here, the Veteran's service-connected disabilities do not yield a combined disability rating sufficient to meet the requirements for a schedular TDIU rating. In order for referral for consideration of entitlement to TDIU on an extraschedular basis, the record would need to include evidence that the Veteran is rendered unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities. The Veteran contends he is unable to maintain gainful employment as an industrial painter due to his service-connected disabilities. The Veteran’s Social Security records reveal his statement that in April 2011 he lost his fourth job as a result of his ankle disability. The record suggests the Veteran has not maintained consistent employment since 2009. He was found by Social Security Administration to be unable to work based in part on the ankle disorders, and also on nonservice-connected disabilities. The Board notes he is a high school graduate with no additional training, and his work experience is limited primarily to painting, that is manual labor, with other experience in delivery, shipping, and packing. An April 2013 VA examiner noted the Veteran's ankle disability impacts his ability to work noting the Veteran is incapable of jobs requiring prolonged standing and or walking, and in December 2017, the examiner noted the Veteran is not a candidate for employment requiring running and or ladder climbing. In light of the Veteran’s record, and assertions with regard to his inability to seek and maintain substantial gainful employment, the Board finds remand for referral to the Director, Compensation Service to be warranted in this case. The matter is REMANDED for the following action: The AOJ shall complete any required development and then refer the Veteran's case to the Director for a determination of whether his service-connected disabilities render him incapable of obtaining and maintaining substantially gainful employment. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.