Citation Nr: 21023015 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-18 476 DATE: April 19, 2021 ORDER Service connection for a left ankle strain (hereinafter left ankle condition), to include as secondary to service-connected right foot myofascial syndrome (hereinafter right foot condition), is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s left ankle condition is not secondary to service-connected right foot condition, and is not otherwise related to an in-service injury or disease. 2. For the entirety of the period on appeal, the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle condition due to service or service-connected right foot myofascial syndrome are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.3, 4.16 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to July 1975, from January 1976 to July 1977, and from July 1979 to February 1981. This case was most recently remanded by the Board in February 2021 for additional development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996) 1. Entitlement to service connection for a left ankle condition. The Veteran seeks entitlement to service connection for a left ankle condition, which he claims is etiologically related to his service-connected right foot condition. See December 2015 Fully Developed Claim. After a thorough review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s left ankle condition is related to his service-connected right foot condition, or is otherwise related to an in-service injury or disease. The Veteran’s post service VA treatment records and examination reports show that he has a current diagnosis for a left ankle condition. However, his service treatment records are silent for any signs, symptoms, findings, or diagnoses related to a left ankle condition. The Veteran has also not offered any arguments relating his left ankle condition directly to his military service. Therefore, service connection based on a direct theory of entitlement is not warranted. Instead, as noted, the crux of the Veteran’s argument is that his current left ankle condition is caused or aggravated by his service-connected right foot condition. In April 2016, the Veteran underwent a VA examination and was diagnosed with a left ankle strain. The Veteran reported that the condition had its onset after he fell from his stairs. Due to the condition, the Veteran reported that his left ankle was very painful and that he suffered a restricted range of motion. The examiner opined that the Veteran’s left ankle condition was less likely than not proximately due to or the result of the Veteran’s service-connected right foot condition. The examiner explained that the left ankle condition was due to a trauma that the Veteran suffered several years after service when he accidentally fell from his stairs. Notably, the examiner opined that the Veteran’s left ankle condition and right foot condition were completely unrelated to each other. Furthermore, the examiner posited, that the medical evidence did not support a finding that having myofascial pain syndrome of the foot predisposed an individual to having a contralateral ankle sprain. See April 2016 VA Examination. In November 2019, the Veteran was afforded another VA examination to evaluate whether his left ankle condition was etiologically related to his right foot condition. After conducting a physical examination on the Veteran, the examiner opined that the Veteran’s left ankle condition was less likely than not proximately due to or the result of the Veteran’s service-connected right foot condition. In his explanation, the examiner noted that there was no anatomic, biomechanical, or pathophysiologic relationship between the Veteran’s left ankle condition, which was caused by a fall in 2014, and his service-connected right foot condition. Furthermore, the examiner opined that to state that the Veteran suffered a fall due to his right foot condition would be speculative in nature and not based in any anatomic or physiological base. The examiner also held that because there was no anatomic, physiological or biochemical connection between the right foot and left ankle, there could not be any consequential aggravation between the two conditions. See November 2019 VA Examination. Most recently, in February 2021, a VA medical opinion was rendered to opine if an etiological relationship existed between the Veteran’s left ankle and service-connected right foot conditions. In the opinion, the examiner explained that there was no relationship between the Veteran’s service-connected right foot condition and his left ankle condition. In pertinent part, the examiner noted that the Veteran’s left ankle condition was caused by a fall that the Veteran suffered from a stairway. Furthermore, the examiner held that the left ankle condition was not etiologically, anatomically, or biochemically related to the Veteran’s service-connected right foot condition. According to the examiner, the Veteran’s right foot condition, evaluated as plantar fascitis, did not cause instabilities in the affected foot. Rather, the examiner explained, plantar fascitis is a focal injury in the sole of the foot, which has nothing to do with stability, balance, proprioception, strength, or gait’s equilibrium. Thus, the examiner opined that the Veteran’s right foot condition was not and should not be accepted as a cause for the Veteran’s fall in 2014. Additionally, the examiner found that there was no aggravation of the Veteran’s left ankle condition by his service-connected right foot condition because the right foot condition had no effect in contralateral ankle joint in terms of weightbearing, motion, biomechanics, or pathophysiology. The service-connected right foot condition did not affect the right ankle joint so as to cause any effect in the contralateral ankle joint or its lateral ligament. Moreover, the examiner explained, the service-connected right foot condition did not cause instability in the right foot so as to cause any increase in heel strike or sheer forces in the contralateral site. Ultimately, the examiner held that the Veteran’s left ankle condition was less likely than not aggravated beyond its natural progression by the Veteran’s right foot condition. See February 2021 VA Medical Opinion. Although the Board acknowledges the Veteran’s contention that his service-connected right foot disability may have caused his left ankle condition, there is no competent evidence in the file that links his current disability with a service-connected condition. Whether a current disability is related to a service-connected disability involves medical questions and is not capable of resolution through lay observation. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Furthermore, the November 2019 and February 2021 VA examiners provided well-reasoned and supported rationales for the negative nexus opinions that they provided regarding causation and aggravation of the Veteran’s left ankle condition by his service-connected disability. In light of the foregoing, the Board concludes that service connection for a left ankle condition on a direct and/or secondary cannot be established. Specifically, the record does not support a causal nexus between the Veteran’s left ankle condition and his active duty service and/or his service connected right foot disability. As indicated above, no etiological evidence exists to establish direct service connection and the November 2019 and February 2021 VA examiners adequately opined that the Veteran’s left foot ankle condition was less likely than not proximately due to or aggravated by his service-connected right foot condition. There are no competent contrary opinions of record. Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of service connection for a left ankle condition and it must be denied. 2. Entitlement to total disability based on individual unemployability (TDIU) The Veteran is seeking a total disability rating based on individual unemployability (TDIU). He claims that his service-connected disabilities render him unable to obtain and maintain gainful employment. See September 2018 Appellate Brief. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. 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). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 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). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Veteran filed a claim for TDIU in December 2015. See December 2015 VA-Form 8940. An April 2016 rating decision subsequently denied entitlement to TDIU. See April 2016 Rating Decision. Thereafter, in September 2018, the Veteran’s representative filed an appellate brief, which, in pertinent part, argued that a TDIU was warranted as the Veteran suffered long-term unemployability due to his service connected disabilities. See September 2018 Appellate Brief. The Board notes that TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Further, once the issue of TDIU has been raised, the Board has jurisdiction over the TDIU claim for the entire period of the underlying disability rating. Accordingly, the Board is mandated to adjudicate the Veteran's claim for TDIU for the entire appeal period. In reviewing the claims file, the Board notes as an initial matter that the Veteran does not meet the schedular requirements for a TDIU. As of the date of this decision, the Veteran’s service-connected disabilities consist of: right foot myofascial syndrome (20 percent), posttraumatic right hip degenerative changes (10 percent), posttraumatic right knee degenerative changes (10 percent), posttraumatic left hip degenerative changes, limitation of flexion (10 percent), posttraumatic right hip degenerative changes, limitation of extension (0 percent), posttraumatic right hip degenerative changes, limitation of abduction, adduction, or rotation (0 percent), posttraumatic left hip degenerative changes, limitation of extension (0 percent), posttraumatic left hip degenerative changes, limitation of abduction, adduction, or rotation (0 percent), right 11th rib fracture, residuals (0 percent); the combined rating is 50 percent. Even though the Veteran does not meet the schedular criteria for consideration of a TDIU, consideration must still be given as to whether a TDIU may be granted on an extraschedular basis. 38 C.F.R. § 4.16(b). Entitlement to a TDIU on an extraschedular basis must be determined in the first instance by VA's Director of Compensation Service. Id. Therefore, the Board has reviewed the claims file to determine whether referral for consideration of entitlement to a TDIU on an extraschedular basis is warranted. The record indicates that the Veteran graduated from high school and attended two years of college. Following service, the Veteran worked as a teacher of basic electronics and computer repairs. See December 2015 VA-Form 21-8940. In April 2016, the Veteran underwent a VA examination to evaluate his bilateral hip, knee, right foot, and rib conditions. At the time, the Veteran complained of bilateral hip, right knee, rib, and right foot pain. Regarding his knee, the Veteran indicated that he experienced flare-ups that rendered him unable to run and walk long distances. The examiner documented a reduced range of motion, but muscle strength testing and joint stability testing returned all normal results. Regarding the right foot condition, the Veteran indicated that he experienced pain. Specifically, he reported severe tenderness with very light/ soft touch of the plantar fascia; however, the examiner opined that it appeared that the Veteran was overreacting. Notably, the examiner opined that pain did not contribute to functional loss as the Veteran was totally independent in all self-care. Due to his right foot condition, the examiner held that the Veteran should avoid being in the same position (standing) for more than 30 minutes. When evaluating the Veteran’s bilateral hip condition, the examiner noted that the Veteran suffered bilateral pain; however, no evidence of pain while weight bearing was noted. As a result of his bilateral hip condition, the examiner opined that the condition impacted the Veteran’s ability to perform occupational tasks, in that he would be limited in prolonged ambulation activities. Turning to the right knee condition, the examiner noted that the Veteran experienced flare-ups, which prevented him from running or walking long distances. No additional functional loss from repeated use, or pain on weight bearing was found. Additionally, joint stability testing returned all normal results for the right knee. The examiner found that the Veteran’s right knee condition impacted his ability to perform occupational tasks by limiting his ability to stand. Finally, the examiner noted that the Veteran experienced pain on the chest wall due to his rib injury; however, the condition was found to have no significant occupational effects. See April 2016 VA Examination. In April 2019, the Veteran was afforded another examination to evaluate his bilateral hip, right knee, right foot, and rib conditions. Regarding the rib condition, the examiner noted that the Veteran had an injury to muscles of respiration. Specifically, he found that the Veteran had injured his thoracic muscle group. Additionally, imaging revealed a callus formation from a previous fracture. However, the examiner opined that the Veteran’s rib condition did not impact his ability to work. Turning to the Veteran’s bilateral hip condition, the examiner noted that the Veteran experienced bilateral hip pain and morning stiffness upon prolonged standing. Due to the condition, the Veteran reported difficulty getting out of cars, and an inability to run. However, the examiner opined that the Veteran’s bilateral hip condition did not impact his ability to perform any type of occupational task. Regarding the Veteran’s right knee condition, the Veteran reported daily right knee pain. Additionally, he reported pain with prolonged use of crutches, when going up hills, and difficulty when squatting. Pain was found to cause functional loss, and muscle strength testing yielded results of 4/5 for both extension and flexion. The Veteran was also noted to constantly use crutches. Despite the limitations noted above, the examiner found that the Veteran’s right knee condition did not impact his ability to perform any occupational task. Finally, when examining the Veteran’s right foot condition, he noted that the Veteran reported experiencing sharp pain in his foot. Additionally, weekly flare-ups were noted that lasted hours at a time. Pain was found to contribute to functional loss; however, the examiner opined that the Veteran’s right foot condition did not impact his ability to perform any type of occupational task. See November 2019 VA Examination. After reviewing the foregoing, the Board finds that the preponderance of the evidence weighs against finding that the Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. In reaching this determination, the Board finds that the most probative evidence of record are the April 2016 and November 2019 VA examinations. Both were conducted to evaluate the severity of the Veteran’s various service connected-conditions, and both described the functional impacts associated with those conditions. Notably, the November 2019 VA examiner did not opine that any of the service-connected conditions that were examined would interfere with the Veteran’s ability to perform any type of occupational task. To the contrary, the April 2016 VA examiner noted that due to the Veteran’s service connected conditions, the Veteran faced limitations in prolonged walking, standing, and an inability to run. Additionally, the examinations indicated that the Veteran requires the constant use of crutches to assist in ambulation. Therefore, the Board finds that while the Veteran has physical limitations that affect his ability to engage in prolonged ambulation, and long periods of standing, the preponderance of the evidence does not show that his service-connected disabilities render him unable to secure or follow substantially gainful employment. Rather, the Board finds that while the Veteran has physical restrictions, he can perform non-physically demanding work. Additionally, record shows that the Veteran attended two years of college and has teaching experience. Lastly, the Board notes that the record contains conflicting information regarding why the Veteran no longer works in his previous capacity as a teacher. In the Veteran’s December 2015 Application for Increased Compensation Based on Unemployability, he indicated that he left his last job due to his service-connected disabilities. However, on the same form, he noted that he no longer worked as a teacher of basic electronics and computer repairs because he was unable to perform the job due to nonservice-connected allergies. Specifically, the Veteran reported that he developed allergies to mold, dust, magic marker, and ethanol from working in a classroom that was contaminated with mold. As a result, the Veteran indicated he could no longer open computers or handle exposed electronic parts. See December 2015 VA-Form 8940. Allergies is not a service connected disability, and therefore may not be considered in this decision for entitlement to a TDIU. The Board also notes that in the April 2016 VA examination report, it was indicated that the Veteran retired in 2008, and that the reason for retirement was listed as, “eligible by age or duration of work”. See April 2016 VA Examination. (Continued on the next page)   In sum, the record does not reflect any work-related issues caused by the Veteran’s service-connected disabilities which would warrant a finding that he is unable to obtain and maintain substantially gainful employment. Accordingly, the Board finds that referral for entitlement to a TDIU on an extraschedular basis is not warranted. As the preponderance of the evidence is against a finding of a TDIU, there is no reasonable doubt to be resolved in the Veteran's favor and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. 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.