Citation Nr: 21024322 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 12-30 299 DATE: April 22, 2021 ORDER Entitlement to a rating in excess of 20 percent for service-connected right ankle disability on an extraschedular basis is denied. Entitlement to a separate disability rating of 20 percent, but not higher, for service-connected right ankle disability under Diagnostic Code 5311 is granted effective October 18, 2013, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The Veteran’s right ankle disability is manifested by marked limitation of motion due to pain but no ankylosis. 2. From October 18, 2013, the Veteran’s right ankle disability is manifested by moderately severe muscle damage under Diagnostic Code 5311, with symptoms of cramping of the ankle, foot, and toes, ankle laxity, muscle fatigue, and stiffness. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for service-connected right ankle disability on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.71, Diagnostic Code 5271. 2. From October 18, 2013, the criteria for entitlement to a separate disability rating of 20 percent, but not higher, for service-connected right ankle disability under Diagnostic Code 5311 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.73, Diagnostic Code 5311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 2009 to November 2009. This matter comes to the Board of Veterans’ Appeals (Board) on an appeal from January 2011 and October 2020 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, the Agency of Original Jurisdiction (AOJ). The January 2011 rating decision granted service connection for service-connected residuals of a right ankle fracture, with hardware placement at the distal fibula, and assigned a 10 percent rating from November 7, 2009. In June 2018, the Board denied entitlement to an initial rating in excess of 10 percent for service-connected residuals of a right ankle fracture, with hardware placement at the distal fibula (“right ankle disability”). The Veteran appealed to the court of Appeals for Veterans Claims (Court). In a May 2019 Joint Motion for Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the Board’s June 2018 decision based on the inadequacy of the October 2010 VA examination. In June 2019, the Court granted the parties Joint Motion for Remand and vacated the June 2018 decision and remanded. In October 2019, the Board remanded for a contemporaneous examination pursuant to the Court’s remand, which took place in December 2019. In October 2020, the Board granted an initial disability rating of 20 percent for a service-connected right ankle disability from November 7, 2009, which was implemented in an October 2020 rating decision. The Board also remanded the issue of entitlement to a higher initial rating in excess of 20 percent for service connected right ankle disability on an extraschedular basis, and the issue of entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis to the Director, Compensation Service or Under Secretary for Benefits. In January 2021, the Director submitted an advisory opinion recommending denial of entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis. 38 C.F.R. § § 3.321(b)(1), 4.16(b). In February 2021, the Director submitted an advisory opinion recommending denial of entitlement to an increased rating for the Veteran’s service-connected right ankle disability on an extraschedular basis. 38 C.F.R. § § 3.321(b)(1), 4.16(b). 1. Entitlement to a higher initial rating in excess of 20 percent for service-connected right ankle disability to include on an extraschedular basis Increased Rating Criteria Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. 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. Separate ratings can be assigned for separate periods based on the facts found -a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. Ap. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings (“staged ratings”) may be warranted for different time periods. In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by visible behavior. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. Pain on movement, swelling, deformity or atrophy of disuse and instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The United States Court of Appeals for Veterans Claims has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). Analysis The Veteran has asserted that she is entitled to a higher rating than 20 percent for her service-connected right ankle disability. The Veteran's right ankle disability is currently rated at 20 percent disabling under 38 C.F.R. § § 4.71a, Diagnostic Code 5271, pertaining to limitation of motion of the ankle. This is the maximum rating available under Diagnostic Code 5271. The Board notes that under the version of Diagnostic Code 5271 in effect prior to February 7, 2021, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Prior to February 7, 2021, words such as “moderate” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Under the version of Diagnostic Code 5271 in effect from February 7, 2021, marked and moderate limitation of motion are defined. Marked limitation of ankle motion is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion; moderate limitation of motion is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The other diagnostic codes pertaining to the ankle are unchanged. The Board finds the older version of the rating criteria is more favorable to this Veteran. The Veteran was most recently afforded a VA examination in December 2019. The examiner noted that the Veteran experienced a spiral fracture to the right ankle during service in 2009, which required surgery to insert a plate held in place by screws. On October 18, 2013, the stabilizing hardware in the Veteran’s ankle was surgically removed due to a mechanical complication of the internal orthopedic device, which was causing pain, and she was provided with an external orthotic. Medical records indicate that the functional goal of the orthotic device is joint stabilization (support and alignment) and decreasing pain. Thereafter, the Veteran continued to have pain to the ankle mostly with weight-bearing activities; the examiner noted that the pain makes it difficult to bear weight. The Veteran reported “achy pain when it’s cold as well as cramp to the little toes;” and occasionally sharp pain with certain movements and activities. She reported that the ankle pain makes it difficult to sleep at night due to increased sensitivity to touch. The Veteran stated that her symptoms have become progressively worse over time. The examiner provided a second diagnosis of ankle laxity in addition to the diagnosis of right ankle fracture status post hardware placement of distal fibula, following the October 2013 removal of stabilizing hardware. In addition to the prior diagnosis of status post right ankle fracture with hardware placement distal fibula, the December 2019 examiner diagnosed ankle laxity. The examiner stated that this new diagnosis is a correction of the previous diagnosis and additional conditions were found which are directly due to or related to the service-connected diagnosis (i.e. a progression). The examiner noted that the Veteran's symptoms are related residuals due to ankle surgery. The Veteran reported that she can no longer walk long distances or driver longer distances as her whole ankle cramps. She cannot hike anymore because proper hiking gear causes pain. She has issues with standing for too long. Initial range of motion testing indicated normal right ankle dorsiflexion of zero to 20 degrees and plantar flexion of zero to 45 degrees. The Veteran did not report flare-ups. No ankylosis was indicated. Right ankle instability and laxity were noted. The examiner noted evidence of pain with weight-bearing. The examiner noted no objective evidence of pain on nonweight-bearing. Passive range of motion for the right ankle was the same as active ROM. Evidence of pain was noted as the same as active ROM. The examiner acknowledged pain on examination that causes functional loss. Further, there was objective evidence of localized tenderness or pain on palpation of the lateral ankle. The examiner noted pain that significantly limits functional ability with repeated use over a period of time. This could not be described in terms of range of motion. The examiner reported a decreased ability in performing activities that require standing, walking, climbing, lifting or bending especially with repetitive or prolonged use/activity. The examiner noted that the Veteran walks with a limp. The examiner attributed the Veteran’s symptoms to related residuals due to ankle surgery. The Board further notes the competent and credible statements made by the Veteran and her mother as to her symptoms. The Veteran submitted a statement in October 2019. She stated that her right ankle disability has negatively affected her life. She has trouble choosing shoes as they put direct pressure on the outside of her ankle where the main scar from the surgery is causing pain and discomfort. She stated that the scar itself still has some numbness due to the nerves being cut during the first surgery and anything that rubs against it causes discomfort, including socks. The Veteran stated that she is unable to walk long distances or hike for more than 20-30 minutes because her ankle starts to stiffen and hurt. She cannot wear boots and must wear inadequate shoes. Her right foot and “toes often cramp up.” During the colder months, she stated that her symptoms change; her ankle throbs in the winter and in the morning her ankle is very stiff and somewhat painful. The Veteran stated that due to her right ankle disability she has sacrificed many pastimes such as riding horses, gymnastics, and hiking. She stated that her right ankle disability affects her work life as standing for prolonged periods causes pain in her ankle. She stated her right ankle disability also affects her driving as her ankle and foot cramp and stiffen if she drives for longer periods, as she did at her last place of employment. The Veteran’s mother submitted a statement in October 2019. She stated that her daughter injured her ankle during basic training and that since her daughter’s surgery, she has witnessed the pain caused by wearing certain shoes that rub on her ankle. She stated her daughter is only able to wear a limited number of shoes. In addition, she stated that her daughter is unable to do some of the things they used to do together, such as hiking, going to theme parks, or going for a walk in the park with the dogs due to the pain she experiences in her ankle. She is also unable to run. During the fall and winter, when it is cold, she stated that her daughter experiences pain in her ankle due to arthritis diagnosed by her doctor. Her ankle also gets quite stiff especially in the morning. The evaluation of the same disability or same symptoms of a disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran is currently rated at the maximum rating of 20 percent under Diagnostic Code 5271 based on marked limited motion of the ankle. The Veteran experiences recurrent instability and laxity of her right ankle, and requires an external brace after the October 16, 2013 removal of internal hardware placed during the surgical repair of her right ankle injury. The Veteran’s ankle laxity causes her to have difficulty with walking and standing. The removal of the ankle plate and screws, worsening symptoms thereafter, and additional diagnosis of ankle laxity diagnosed during the December 2019 examination are not contemplated by the schedular rating criteria under Diagnostic Code 5271, which addresses limitation of ankle motion. However, the Board finds that the Veteran's right ankle disability should be assigned a separate rating under a muscle code, in order to fully compensate the Veteran for the totality of her ankle symptomatology. The Board finds that the evidence of record warrants a separate compensable rating for damage to muscle group XI, which involves the muscles of the foot, ankle, and calf. 38 C.F.R. § 4.73, Diagnostic Code 5311. Under DC 5311, muscle group XI, controls propulsion, plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. Muscle injury disabilities are rated as slight, moderate, moderately severe or severe according to criteria based on the type of injury, the history and complaint, and objective findings. 38 C.F.R. § 4.56(d). A slight disability is rated at 0 percent, a moderate disability is rated at 10 percent, a moderately severe disability is rated at 20 percent, and a severe disability is rated at 30 percent. 38 C.F.R. § 4.56 (d). The cardinal signs or symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). Diagnostic Code 5311 controls plantar flexion/flexion of the toes and dorsiflexion/extension of the toes. Laxity, cramping, and muscle fatigue are not rated under Diagnostic Code 5271. Here, Diagnostic Code 5311 addresses the Veteran’s additional symptoms that are not addressed by Diagnostic Code 5271, including laxity, ankle, foot and toes cramping, and muscle fatigue that causes stiffness after use of the right foot. A moderately severe muscle disability involves consistent complaint cardinal signs and symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), particularly a lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. The Board finds that the Veteran’s symptoms that are not contemplated by Diagnostic Code 5271 warrant a separate 20 percent rating under Diagnostic Code 5311. Objective findings required for a severe muscle disability require atrophy and objectively diminished muscle excitability, which is not shown. As a separate disability rating has been granted for the Veteran’s right ankle disability under the schedular ratings, all of the Veteran’s symptoms are now accounted for on a schedular basis, and entitlement to an extraschedular rating must be denied. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008); Morgan v. Wilkie, 31 Vet. App. 162 (2019). REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) to include on an extraschedular basis The Board referred the matter of extraschedular consideration for the Veteran’s TDIU claim to the Director, Compensation Service. 38 C.F.R. § 4.16 (b). As the Director has issued a decision, the issue is now before the Board to be addressed on the merits. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). The Board notes that the aforesaid decision is not evidence, but is rather akin to a de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). In the January 2021 advisory opinion, (preceded by an administrative review report in December 2020) the Director recommended denial of entitlement to a TDIU on an extraschedular basis. 38 C.F.R. § § 3.321(b)(1), 4.16(b). The Director found that the evidence fails to support a finding that the service-connected disabilities or a combination of the effects of those disabilities prevented substantially gainful employment. The Director found that there is no medical evidence of inability to perform sedentary employment due to service-connected conditions. The Veteran stopped working in April 2019 and in February 2020, she applied for the Vocational Rehabilitation and Employment program (VRE). The evidence in the Veteran’s VRE file shows that the Veteran’s service-connected disabilities negatively affect her ability to stand, walk, or sit for long periods of time. She was found eligible for the program, with a finding of a serious employment handicap due to her service-connected disabilities, and a finding that achievement of a vocational goal is reasonably feasible. The Veteran enrolled in college and was found eligible for a subsistence allowance under the VRE program as of August 24, 2020. In this decision, the Board is granting entitlement to a separate compensable rating for service-connected right ankle disability under Diagnostic Code 5311. Therefore, the Veteran’s disability picture has changed. The Veteran’s appeal for an increased rating may in turn affect her eligibility for a schedular TDIU. In any event, the evidence of record is insufficient to reach a decision on the merits as to entitlement to an extraschedular TDIU. The Veteran has not submitted a VA Form 21-8940 from the Veteran. Her educational and employment status are unclear. It is also unclear whether the Veteran is capable of sedentary employment. The Board therefore finds that a remand for further development of the record is required. The matters are REMANDED for the following action: 1. Associate any updated VA treatment records with the file. 2. Provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and advise her to complete and return the form in support of her claim for a TDIU. Thereafter, after implementing the Board’s assignment of a separate 20 percent rating for muscle damage to her ankle under Diagnostic Code 5311, and regardless of whether the Veteran responds to the request for additional information regarding her employment, readjudicate the Veteran’s claim for a TDIU on an extraschedular basis. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, Associate 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.