Citation Nr: 21025964 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-24 802 DATE: April 29, 2021 ORDER Restoration of the prior 40 percent rating for residuals of left ankle sprain, effective November 1, 2015 is granted. Restoration of the prior Special Monthly Compensation (SMC) for loss of use of left foot, effective November 1, 2015, is granted. Entitlement to an increased rating in excess of 40 percent for left ankle sprain residuals is denied. Entitlement to service connection for left leg blood clots, as due to a service-connected disability is denied. Entitlement to service connection for right leg blood clots, as due to a service-connected disability is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional disability of left leg blood clots due to VA treatment is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional disability for right leg blood clots due to VA treatment is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional disability of right foot Charcot due to VA treatment is moot and dismissed. Entitlement to a total disability rating due to service-connected disabilities (TDIU) prior to November 14, 2020 is granted. FINDINGS OF FACT 1. In an August 2015 rating decision, the Regional Office (RO) reduced the Veteran’s rating for a left ankle sprain from 40 percent to 10 percent, effective November 1, 2015. The RO met all due process requirements in executing the reduction. 2. The Veteran’s left ankle sprain does not show sustained improvement under the normal circumstances of life and work. 3. The Veteran’s SMC was discontinued after the disability rating for her left ankle disability was reduced effective November 1, 2015. Herein, this disability rating is being restored as the evidence of record does not show that the Veteran’s ability to function under the normal conditions of life has been improved, and thus the SMC must also be restored. 4. The Veteran’s left ankle sprain residuals were manifested by ongoing pain, swelling and weakness and a loss of use of the left foot. The Veteran is currently assigned the maximum schedular rating, 40 percent for the entire period on appeal. 5. The weight of the competent and credible evidence is against finding that the Veteran’s left leg blood clots are secondary (caused or aggravated) to her service-connected left ankle sprain. 6. The weight of the competent and credible evidence is against finding that the Veteran’s right leg blood clots are secondary (caused or aggravated) to her service-connected left ankle sprain. 7. The Veteran does not have an additional left leg blood clot disability, due to VA care and treatment in 1994 and 1996, and such was not the result of carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA, nor was it due to an event not reasonably foreseeable. 8. The Veteran does not have an additional right leg blood clot disability, due to VA care and treatment in 1994 and 1996, and such was not the result of carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA, nor was it due to an event not reasonably foreseeable. 9. The grant of service connection for right foot Charcot in a December 2020 rating decision renders moot the Veteran’s claim for compensation pursuant to 38 U.S.C. § 1151 for right foot Charcot. 10. Prior to November 14, 2020, the Veteran was service-connected for a left ankle sprain rated as 40 percent disabling, irritable bowel syndrome rated as 30 percent disabling, low back strain rated as 20 percent disabling, right knee patellofemoral pain syndrome rated as 10 percent disabling, left knee patellofemoral pain syndrome rated as 10 percent disabling, right foot Charcot rated as noncompensable, left fifth metacarpal status post fracture rated as noncompensable and scars of the right and left foot rated as noncompensable; for a total disability rating of 70 percent. 11. Prior to November 14, 2020, resolving reasonable doubt in the Veteran’s favor her service-connected disabilities are shown to render her unable to secure and follow all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The reduction in the rating for left ankle sprain from 40 percent to 10 percent, effective November 1, 2015 was improper, and restoration of the prior rating is warranted. 38 U.S.C. §§ 1155, 5107, 5112 (2012); 38 C.F.R. §§ 3.105, 3.344, 3.655, 4.71a Diagnostic Code 5284, 5299-5262 (2020). 2. The criteria for restoration of SMC for loss of use of the left foot have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.105, 3.344 (2020). 3. The criteria for a rating in excess of 40 percent for a left ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5284, 5262 (2020). 4. The criteria for service connection for left leg blood clots have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2020). 5. The criteria for service connection for right leg blood clots have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2020). 6. The criteria for entitlement to compensation under 38 U.S.C. § 1151 as to left leg blood clot disability related to VA care and treatment in 1994 and 1996 have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2020). 7. The criteria for entitlement to compensation under 38 U.S.C. § 1151 as to right leg blood clot disability related to VA care and treatment in 1994 and 1996 have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2020). 8. The Veteran’s claim for compensation pursuant to 38 U.S.C. § 1151 for right foot Charcot is moot. 38 U.S.C. §§ 1151, 5107, 7104, 7105 (2012); 38 C.F.R. §§ 3.361, 20.1100 (2020). 9. The criteria for TDIU, prior to November 14, 2020, have been met. 38 U.S.C. §§ 1155, 5107; (2012) 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1980 to May 1983. The Veteran testified at a November 2019 Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Previously, the claims were before the Board in April 2020 and were remanded for additional development. There has been substantial compliance with the prior remand directives, and the claim is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the course of the appeal in a December 2020 rating decision service connection was granted for right foot Charcot effective November 4, 2013. In addition, service connection was granted for a low back strain effective May 4, 2015. As such represents a full grant of benefits sought on appeal these claims are no longer before the Board. RATING REDUCTION In rating reductions, when VA contemplates reducing an evaluation for a veteran’s service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105 I. As enumerated in 38 C.F.R. § 3.105 I, “[w]here the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.” Id. In addition, “[t]he beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.” Id. The beneficiary also will receive notification that “he or she will have an opportunity for a pre-determination hearing,” 38 C.F.R. § 3.105 (i), and thereafter, a “final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.” See 38 C.F.R. §§ 3.105I; 3.500I. In addition to satisfying the procedures outlined above, the RO must gather evidence to establish that a rating reduction is proper. Pertinent to this case, according to 38 C.F.R. § 3.344 (a), titled “[e]xamination reports indicating improvement,” applies to disability ratings which have continued at the same level for 5 years or more, which is applicable in this case. See 38 C.F.R. § 3.344(c). 38 C.F.R. § 3.44(a) states that “[e]xaminations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction” and “though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.” 1. Restoration of the prior 40 percent rating for residuals of left ankle sprain Here the Veteran’s 40 percent rating for her left ankle disability was in effect from December 19, 2002 as assigned in an August 2003 rating decision. Measuring from the effective date of the rating, December 2002, the Veteran’s 40 percent rating was in effect for over 12 years at the time of the proposed reduction. Thus, at the time of the proposed reduction the Veteran’s 40 percent rating had been in effect for more than 5 years. In a rating reduction case where the rating has been in effect for more than five years, three questions must be addressed. 38 C.F.R. § 3.344 (a); Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); see also Brown, 5 Vet. App. At 417 (holding that the five-year period in § 3.344(c) is to be measured from the effective date of rating not from date of RO decision assigning that rating). First, a rating reduction must be based upon a review of the entire recorded history of the condition, to ascertain whether the evidence reflects an actual change in the disability. Brown, 5 Vet. App. At 420-22 (quoting § 3.344(a)). Second, whether the examination report reflecting such change are based upon thorough examinations. Id. Third, it must be determined whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Id. Additionally, in cases in effect for longer than five years, “[r]atings on account of diseases subject to temporary and episodic improvement... will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.” Id. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time that it effectuated the reduction, although the Board may consider post-reduction medical evidence in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Where the reduction in evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a net reduction of compensation payments currently being made, a rating proposing the reduction will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his proper address of record of the contemplated action, furnished detailed reasons therefore, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. 38 U.S.C. § 5112 (b)(6); 38 C.F.R. § 3.105 I. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran contends that the rating reduction for her left ankle sprain was not proper as her condition did not improve. A February 2015 rating decision proposed to reduce the Veteran’s loss of use of her left foot (previously rated as residuals of a left ankle sprain) from 40 percent to 10 percent. An August 2015 rating decision decreased the evaluation of the Veteran’s residuals of a left ankle sprain to 10 percent effective November 1, 2015. The Veteran’s service connected residuals of a left ankle sprain was rated under Diagnostic Code 5299-5262, after the rating reduction. The Board notes that during the lengthy period of service connection the Veteran’s residuals of a left ankle sprain was at times characterized as loss of use of her left foot. The Veteran’s loss of use of left foot was rated under Diagnostic Code 5284. Herein, the Board is considering the entirety of the Veteran’s associated symptomology as residuals of her left ankle sprain including the loss of use of her left foot in the discussion and analysis. For the sake of brevity, the Board will refer to the entirety of this symptomology and associated impairment as residuals of a left ankle sprain. Hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires the use of an additional Diagnostic Code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 5284 foot injuries other, a 10 percent rating is warranted for moderate impairment of the foot. A 20 percent rating is warranted for moderately severe impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284 and Note Under Diagnostic Code 5262, tibia and fibula, impairment of the knee and leg a 40 percent rating is warranted for nonunion of the tibia and fibula, with loose motion and requiring a brace. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. As noted above, an August 2015 rating decision decreased the evaluation of the Veteran’s residuals of a left ankle sprain to 10 percent effective November 1, 2015. A February 2015 rating decision proposed to reduce the Veteran’s loss of use of his left foot (previously rated as residuals of a left ankle sprain) from 40 percent to 10 percent. A prior rating decision in February 2014 noted improvement in the Veteran’s condition. The February 2014 rating decision noted that recent evidence showed some improvement in the Veteran’s left ankle sprain, but sustained improvement had not been definitely established and the 40 percent evaluation was continued. The rating decision in February 2015 noted sustained improvement in the Veteran’s left ankle condition. As sustained improvement had been demonstrated the Veteran’s left ankle sprain was proposed to be reduced to 10 percent. Additionally, the February 2015 rating decision noted that entitlement to SMC was no longer shown because the Veteran did not meet the criteria as to loss of use. The RO complied with procedural safeguards regarding the manner in which the Veteran was given notice of and the implementation of the reduction in February 2015 written correspondence. See 38 C.F.R. § 3.105. An October 2013 VA ankle examination has been associated with the claims file. The Veteran reported an in-service injury to her left foot and ankle after jumping off the back of a truck. The examiner noted a recurrent left ankle sprain. The examiner noted the Veteran experienced daily left foot pain located in the medial left foot and ankle region. The Veteran denied flare ups. Range of motion testing noted left ankle plantar flexion to 45 degrees and plantar dorsiflexion to 15 degrees with no objective evidence of painful motion. Repetitive use testing did not result in any additional loss of motion. Functional loss was noted with less movement than normal, interference with locomotion and interference with sitting, standing and weight bearing. Localized tenderness or pain on palpation of the left ankle was noted. Muscle strength testing was 5/5. Joint stability testing noted a positive left side talar tilt test. No ankylosis was noted. The examiner noted that the Veteran’s left ankle condition impacted her ability to work in that she was unable to run, unable to walk for greater than half a block and jumping was limited to 2 jumping jacks. The examiner noted that the most accurate assessment of the Veteran’s service connected left ankle condition was a recurrent left ankle sprain. The examiner noted that due to her current recurrent left ankle sprain condition the Veteran would be unable to engage in employment that required running any distance or walking for greater than half a block; sedentary employment would be feasible. A December 2014 VA foot examination has been associated with the claims file. The Veteran reported injuring her left great toe in-service. She reported no current left foot symptoms or treatments and no flare ups or functional loss affecting the left foot. The examiner noted left foot degenerative arthritis. The examiner noted that the Veteran underwent exostectomy of left great hallux in 2009. Examination noted no pain or functional loss of the left foot. The examiner noted that the Veteran’s left foot condition does not impact her ability to perform occupational tasks. A January 2015 VA ankle examination has been associated with the claims file. The examiner noted residuals of a left ankle sprain and left foot degenerative arthritis. The Veteran reported chronic left ankle pain and weakness and intermittent swelling. No flare ups were reported. Functional loss was noted in that she had days where the pain was more severe and would avoid going out of the house or prolonged walking during these time periods. Range of motion testing noted left ankle dorsiflexion from 0 to 15 degrees and plantar flexion from 0 to 45 degrees with pain. Pain was noted on examination which causes functional loss. Tenderness to palpation over the medial and lateral malleolar regions and tenderness over the Achilles tendon was noted. Repetitive use testing did not result in any additional loss of function. Muscle strength testing was 5/5 with no muscle atrophy. No ankylosis was noted. Occasional use of a wheelchair and brace was noted. The examiner noted that the Veteran’s left ankle disability does not impact her ability to perform occupational tasks. A clarification from VA examiner in July 2015 noted that the Veteran occasionally used a wheelchair and brace due to her left ankle. The examiner noted that the Veteran used a left ankle Velcro metal brace as needed for times of increased pain and used a wheelchair as needed for times of severe pain. A VA ankle examination in August 2015 was been associated with the claims file. The Veteran reported that she injured her left ankle/foot in service in 1982 jumping out of a truck. She reports since the in-service injury she has walked off balance and has ongoing left ankle and foot pain, with her ankle rolling and falling often. The Veteran reports use of a walker, cane and crutches and a wheelchair at times due to chronic left ankle pain and to prevent falling. The examiner noted a chronic left ankle strain. The examiner noted the Veteran wears special orthotic shoes on her left foot. The Veteran reports flare ups of her ankle, with increased left ankle pain and she will miss work once a week or adjust her schedule due to pain. Functional loss was noted with increased pain with weight bearing and regular use of wheelchair or cane and crutches. Range of motion testing noted left ankle dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 30 degrees with pain. Range of motion contributes to functional loss with decreased range of motion due to pain. There was evidence of pain on weight bearing. Repetitive use testing did not result in any additional loss of function or range of motion. The examiner noted that pain, fatigue, weakness and a lack of endurance significantly limits functional ability with repeated use over time. The examiner noted that as to loss of function with repeated use the Veteran experiences increased pain likely with standing, walking more than a few steps with assistive devices or flexion of the ankle would be expected during flare ups or when the joint is used repeatedly over a period of time. Muscle strength testing was 4/5, with no muscle atrophy. No ankylosis was noted. Joint stability testing noted a positive talar tilt test with left ankle instability. Constant use of a wheelchair, braces, crutches and regular use of a walker was noted. The Veteran’s left ankle disability impacts her ability to perform occupational tasks in that she is precluded from laborious jobs or jobs requiring prolonged standing, walking without assistive devices or use of a wheelchair. VA treatment records note ongoing treatment and care for left ankle pain and left foot pain, instability and weakness. Treatment records note ongoing reports of left ankle pain, swelling and instability. Treatment records note the regular use of a left ankle brace and a wheelchair and crutches for ambulation. Treatment records consistently note the Veteran continued to have difficulty with weight bearing on her ankle and foot and walking any distance without the use of an arm crutch or wheelchair, and a very limited walking capacity. The Veteran’s lay statements show ongoing left ankle instability, falling, and difficulty standing for prolonged periods due to pain and weakness of her foot and ankle. The RO failed to fully consider the entirety of the evidence of record at the time of the reduction. While VA examinations in October 2013 and December 2014 noted at best minimal improvement such improvement had not been maintained under the ordinary conditions of life and work. The VA examination in August 2015 noted occasional use of a wheelchair, walker cane and crutches due to chronic left ankle and foot pain and to prevent falls due to ongoing instability. The Veteran reported regular flare ups of her left ankle that result in increased pain and required her to miss work. The examiner noted functional loss with increased weight bearing and use of wheelchair or cane and crutches. The examiner noted that pain, fatigue, weakness and a lack of endurance significantly limit functional ability with repeated use over time. The examiner noted that regarding loss of function with repeated use in that the Veteran experiences increased pain with standing, walking more than a few steps with assistive devices or flexion of the ankle would be expected during flare ups or when the joint is used repeatedly over a period of time. Joint stability testing noted a positive talar tilt test with left ankle instability. Constant use of a wheelchair, braces, crutches and regular use of a walker was noted. The Veteran’s left ankle disability impacts her ability to perform occupational tasks in that she is precluded from laborious jobs or jobs requiring prolonged standing, walking without assistive devices or use of a wheelchair. Overall, the Board finds that the evidence did not reveal actual, ascertainable improvement of the Veteran’s left ankle sprain and foot disability maintained under the ordinary conditions of life and work. This conclusion is supported by the medical and lay evidence of record. Treatment records and lay statements during this time note ongoing left ankle and foot pain weakness and instability and consistent difficulty completing activities of daily living with reports of falling, difficulty walking long distances and flare ups of pain resulting in the Veteran being unable to work at times. Additionally, the Board notes that additional VA treatment records that were associated with the claims file since the RO decision note ongoing reports of left ankle instability and falls including an emergency room visit due to the Veteran’s left ankle giving way. Lay statements and VA treatment providers consistently noted use of a left ankle brace as well as assistive devices including a wheelchair, cane and crutches due to the Veteran’s left ankle symptomology and continued difficulty weight bearing. The Veteran continued to use an ankle brace and assistive devices for movement and experienced ongoing functional loss and had consistent ongoing difficulty with weight bearing on her left foot and ankle. Based on a review of the entire recorded history of the condition the Board finds that the evidence does not reflect an actual change in the Veteran’s disability. Additionally, looking at the evidence in the light most favorable to the Veteran the Board cannot conclude that the weight of the evidence shows a material improvement in the Veteran’s left ankle disability that was reasonably certain to be maintained under the ordinary conditions of life. As such there is no evidence that there is no improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Accordingly, the Board finds that the weight of the evidence does not establish sustained improvement in the Veteran’s left ankle disability. The Veteran continued to report ongoing left foot and ankle pain, weakness and instability which interfered with her activities of daily living. In addition, there is credible lay evidence regarding the Veteran’s ongoing symptomology including instability and difficulty walking for prolonged periods with flare ups and regular use of assistive devices due to an inability to weight bear. As such the reduction of the Veteran’s rating for her left ankle sprain was not supported by the evidence of record. Resolving all doubt in favor of the Veteran, the 40 percent rating for left ankle sprain and loss of use of left foot is restored effective November 1, 2015. As such the Board finds that the reduction is not supported by evidence of record and restoration of the prior 40 percent rating is warranted. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. At 421. 2. Restoration of the prior SMC for loss of use of left foot effective November 1, 2015 Herein, the Board has restored the Veteran’s 40 percent rating for her left ankle sprain and loss of use of left foot effective November 1, 2015. The Veteran was in receipt of SMC based on loss of use of her left foot. As noted above that Board finds that the reduction was not supported by the evidence of record and that the weight of the evidence does not establish sustained improvement in the Veteran’s left ankle disability. As the Board has restored the Veteran’s 40 percent rating for her left ankle disability and loss of use of her left foot, restoration of SMC is also warranted. As the Board finds restoration of SMC effective November 1, 2015 is warranted. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. At 421. INCREASED RATING Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, staged ratings will be considered and discussed, as warranted. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Moreover, joint testing is to be conducted 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. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). 3. Entitlement to an increased rating in excess of 40 percent for residuals of a left ankle sprain The Veteran contends that an increased rating is warranted for her residuals of a left ankle sprain. As noted above previously, the Veteran’s left ankle sprain was rated as 10 percent disabling from November 1, 2015. However, as discussed above, the Board has restored the Veteran’s prior 40 percent rating for her left ankle disability. As such the Board will consider whether a rating in excess of 40 percent is warranted. During the period of the appeal, the Veteran’s residuals of a left ankle sprain has at times been characterized as loss of use of her left foot. The Veteran’s loss of use of left foot has been rated under Diagnostic Code 5284. Herein, the Board is considering the entirety of the Veteran’s associated symptomology with residuals of her left ankle sprain including loss of use of her left foot in the discussion and analysis. For the sake of brevity, the Board will refer to the entirety of this symptomology and associated impairment as residuals of a left ankle sprain. The Veteran’s left ankle sprain is rated at 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5284. Prior to restoration of the Veteran’s 40 percent rating for her left ankle disability, her residuals of left ankle sprain was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5262. Hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Board will consider whether an increased rating is warranted under any applicable Diagnostic Code. Under Diagnostic Code 5284 foot injuries, other a 10 percent rating is warranted for moderate impairment of the foot. A 20 percent rating is warranted for moderately severe impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284 and Note The Board acknowledges that the terms “moderate”, “moderately severe”, and “severe” are not defined under VA law and appear to have no commonly accepted medical definition. 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. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. Under Diagnostic Code 5262, tibia and fibula, impairment of the knee and leg a 40 percent rating is warranted for nonunion of the tibia and fibula, with loose motion and requiring a brace. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. During the course of the appeal, effective February 7, 2021, 38 C.F.R. § 4.71a Schedule of Ratings-Musculoskeletal System including Diagnostic Code 5262 was amended. Effective February 7, 2021 forward, under the updated Diagnostic Code 5262, a 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace, which was not updated. The Diagnostic Code was updating relating to malunion of the tibia and fibula noting such should be evaluated under Diagnostic Code 5270 or 5271 for the ankle, whichever result in the highest evaluation. Additionally, the Diagnostic Code was updated to include ratings for medial tibial stress syndrome os shin splints. The Board will consider whether the updated Diagnostic Code is warranted from the date of implementation forward. Diagnostic Code 5284 was not amended as part of the updated Diagnostic Code. The Veteran contends that she experiences ongoing left ankle and foot pain, instability and weakness. The Veteran reports ongoing left ankle pain and flare ups of pain that at times result in her unable to complete activities of daily living. The Veteran testified to difficulty bearing weight on her left ankle and foot, and regular use of a wheelchair or cane and crutches. The Veteran was afforded a VA foot examination in November 2020. The examiner noted loss of use of the left foot. The Veteran reported flare ups with constant left foot pain that increases in severity with use. Functional loss was noted in that the Veteran is unable to bear weight on her feet. Weight bearing noted pain as did non-weight bearing. Active range of motion noted severe pain as did passive range of motion testing. Pain on use and manipulation of the feet was noted. The examiner noted that he Veteran’s left foot condition is moderately severe and chronically compromises weight bearing. Functional loss was noted with less movement than normal, pain on weight bearing, swelling and a disturbance of locomotion. The examiner noted that the Veteran is unable to use her left foot due to pain. The examiner noted that the Veteran’s foot disability impacts her ability to perform occupational tasks in that she has severe difficulty weight bearing and ongoing pain. In addition the Veteran was afforded a VA ankle examination in November 2020. The examiner noted residuals of a left ankle sprain. The Veteran reported an in-service left foot injury and ongoing pain and a loss of sensation. The Veteran reported flare ups with increased ankle pain. Functional loss was noted in that the Veteran is non-weight bearing due to pain in her ankles. Range of motion testing noted left ankle dorsiflexion from 0 to 15 degrees and plantar flexion from 0 to 45 degrees with pain on rest/non-movement. Severe evidence of localized tenderness or pain on palpation was noted. There was evidence of pain on non-weight bearing and passive range of motion testing was the same as active. Repetitive use testing did not result in any additional loss of function or range of motion. Flare ups result in pain, fatigue, weakness and lack of endurance as well as less movement than normal, swelling and interference with standing. Muscle strength testing was 4/5 with no muscle atrophy. No ankylosis was noted. Constant use of a wheelchair was noted. The examiner noted that the Veteran’s left ankle disability results in occupational impact in that she is non weight bearing and wheelchair bound. VA treatment records have been associated with the claims file and note ongoing reports of left ankle pain, weakness and instability. Treatment records note ongoing reports of left ankle pain, swelling and instability. Treatment records note the regular use of a left ankle brace and a wheelchair and crutches for ambulation. Treatment records consistently note the Veteran continued to have difficulty with weight bearing on her ankle and foot and walking any distance without the use of an arm crutch or wheelchair, and a very limited walking capacity. Based on the lay and medical evidence of record the Board finds that a rating in excess of 40 percent for the Veteran’s left ankle sprain is not warranted. The Veteran has been in receipt of the maximum schedular rating for her left ankle sprain and as such, a higher rating is not permitted under Diagnostic Code 5284. The Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, however none has been found. The Board notes the Veteran’s contentions of ongoing left ankle pain, weakness and instability. The Veteran is competent to testify to such lay observable symptomology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence in this case even when accepted as accurate does not establish a level of disability contemplated by a higher evaluation. As the Veteran is in receipt of the maximum schedular rating under Diagnostic Code 5284, an increased rating under this Diagnostic Code is not warranted. The VA examiner in November 2020 noted functional loss in that the Veteran is unable to bear weight on her feet. The examiner noted that the Veteran’s left foot condition is moderately severe and chronically compromises weight bearing. Functional loss was noted with less movement than normal, pain on weight bearing, swelling and a disturbance of locomotion. The examiner noted that the Veteran is unable to use her left ankle and foot due to pain. As to the Veteran’s left ankle, functional loss was noted in that the Veteran is non weight bearing due to pain in her ankles. Range of motion testing noted left ankle dorsiflexion from 0 to 15 degrees and plantar flexion from 0 to 45 degrees with pain on rest/non-movement. The Board finds the November 2020 VA examination is entitled to significant probative weight and that a rating in excess of 40 percent is not warranted. As the Veteran is already in receipt of a 40 percent rating the maximum schedular rating under Diagnostic Code 5284, the Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, however none has been found. The Veteran underwent a Brostrom surgical reconstruction of the left ankle ligament in September 2019. The report of surgery and follow up from a private physician are of record. The Veteran was noted to have been using a CAM boot prior to the procedure. Following the procedure and recovery from anesthesia, she was release to home. Two weeks later, the sutures were removed, and the physician advised comfortable weight bearing with the use of the boot. There was no cast and the recovery to the previous level of disability was less than one month. Therefore, the criteria for a temporary total rating for convalescence provide by 38 C.F.R. § 4.30 were not met. As noted above under Diagnostic Code 5262, a 40 percent rating is warranted for nonunion of the tibia and fibula, with loose motion and requiring a brace. A 40 percent rating is also the maximum schedular rating under this Diagnostic Code as well. As such an increased rating is not warranted under Diagnostic Code 5262 for this period on appeal. The Board has considered whether any applicable Diagnostic Code relating to the ankle and foot is warranted. The Board finds that there is no evidence of ankle or subastragalar or tarsal joint ankylosis and as such a rating under Diagnostic Code 5270 or 5272 is not warranted. Additionally, Diagnostic Code 5271, ankle limitation of motion as not warranted as such would not warrant an increased rating. There is no evidence of a shortening of the Veteran’s left lower extremity and a rating under Diagnostic Code 5275 is not warranted. The Board notes that the Veteran is already in receipt of a separate rating for bilateral plantar fasciitis under Diagnostic Code 5276. Additionally, the Board finds no evidence of claw foot (pes cavus) warranting an increased rating under Diagnostic Code 5278. The Board has thorough considered whether any additional or increased rating is warranted under the Diagnostic Code for the feet but finds such as not applicable. As such an additional or an increased rating in excess of 40 percent is warranted for this period on appeal. The Board has also considered whether an increased rating is warranted based on the updated Diagnostic Code effective February 7, 2021 forward, however such would not result in an increased rating for the Veteran’s left ankle sprain residuals. Further, the Board notes that the Veteran’s functional loss was considered, as the medical evidence shows that the Veteran has consistently complained of pain in her left ankle and foot. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that painful motion is already contemplated by the currently assigned 40 percent rating. In addition, as shown above, there is no evidence of record reflecting that the Veteran experiences additional functional loss or limitation of motion due to symptoms such as pain, weakness, weakened movement, excess fatigability, or incoordination, beyond that noted by the VA examiner and contemplated herein by the Board. Therefore, the Board concludes that the greater weight of evidence is against assigning additional higher ratings under Deluca. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding an increased rating in excess of 40 percent for the Veteran’s left ankle sprain is warranted, during this period on appeal. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. SERVICE CONNECTION 4. Entitlement to service connection for left leg blood clots, to include as due to a service-connected disability 5. Entitlement to service connection for right leg blood clots, to include as due to a service-connected disability A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran 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” – the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. A disability which is proximately due to or the result of a service connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310 (b). The Veteran contends that service connection is warranted for left and right leg blood clots, as due to her service-connected left ankle disability. For brevity, the Board will discuss the Veteran’s claims for entitlement to service connection for left leg blood clots and right leg blood clots together. The Veteran testified in November 2019 to developing blood clots in her legs in 1994. She testified to being prescribed Motrin by VA Clinic in Camp Hill, Pennsylvania and she subsequently experienced significant pain and swelling and that blood clots were discovered. In addition, the Veteran reported that she again experienced blood clots in 1996, after being prescribed Motrin. The Veteran is competent to describe her current symptoms and in-service events and to this extent, these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has a left leg blood clot disability and a right leg blood clot disability that began during service or is at least as likely as not caused by an in service injury or disease; or is caused or aggravated by a service-connected disability. The Veteran has a diagnosis of right and left leg blood clots. The Veteran’s service treatment records (STRs) have been associated with the claims file. In service the Veteran was treated for left ankle torn ligaments. At separation in March 1983 on the report of medical examination clinical evaluation of the lower extremities and vascular system was normal. In addition, in March 1983 on the report of medical history the Veteran denied cramps in her legs. The Veteran is currently service connected for residuals of a left ankle sprain rated as 40 percent disabling. The Veteran was afforded a VA examination in August 2015. The Veteran reported tingling, numbness and pain in her bilateral lower extremities since she had blood clots in her lower legs after taking ibuprofen. The examiner noted polysensory neuropathy of the right and left lower extremity with venous stasis disease status post recurrent deep vein thrombosis (DVTs) with greenfield filter placement. The examiner noted that the Veteran was on estrogen since 1989 and has continued on it after having recurrent DVTs in 1996 and 2003. Over time the Veteran reported losing feeling in her feet up to her knees with chronic pain in her ankles and feet. Symptoms attributable to a peripheral nerve condition include severe consonant right and left lower extremity pain, severe right and left lower extremity intermittent pain, severe right and left lower extremity paresthesia and severe right and left lower extremity numbness. Muscle strength testing was 4/5 bilaterally with no muscle atrophy. Regular use of a wheelchair, brace and walker and occasional use of crutches and a cane as assistive devices was noted. The Veteran has decreased sensation of the lower extremities to light touch and temperature which is consistent with polysensory neuropathy that was termed idiopathic by a neurologist in the past. The neuropathy symptoms occurred after the DVTs of the lower extremities. The examiner found the Veteran’s peripheral nerve condition impacts her ability to work in that she is precluded from climbing, walking without assistive devices and standing for more than a few minutes due to fall risk. The examiner found that it is less likely than not that the Veteran’s right and left lower extremity polysensory neuropathy with venous stasis disease status post recurrent DVTs was related to her service connected left ankle condition. Then, the Veteran was afforded a VA examination in November 2020. The Veteran reported she had bilateral blood clots in her legs in 1994. The Veteran reports she was given Motrin which caused the blood clots and that she is allergic to Motrin. The examiner noted left leg blood clots and right leg blood clots and varicose veins bilaterally. Bilateral persistent edema was noted. The VA examiner found that the Veteran’s left leg and right leg blood clots are less likely than not proximately due to or the result of her service connected left ankle condition. The examiner noted that the Veteran’s bilateral blood clots and bilateral varicose veins are separate conditions that do not have a pathophysiological relation to the residuals of her left ankle sprain. The examiner found that the claimed conditions of left and right leg blood clots are less likely than not proximately due to or the result of the Veteran’s service connected condition. Additionally, the Veteran’s bilateral leg blood clots are independent of the left knee patellofemoral pain syndrome and right knee degenerative arthritis. Additionally, the examiner found that it is less likely than not that the Veteran’s bilateral blood clots and bilateral varicose veins were aggravated by a service connected disability. The examiner noted that these are separate conditions that have no pathophysiological relation to the Veteran’s service connected bilateral patellofemoral pain syndrome with degenerative arthritis and left ankle strain. VA treatment records have been associated with the claims file. These treatment records do not contradict the VA examinations and are absent indications of a relationship between the Veteran’s current service-connected left ankle disability and her left and right leg blood clots. After consideration of all consideration of all the evidence of record the Board finds that the weight of the evidence is against finding that service connection for left leg blood clots and right leg blood clots is warranted. The Board concludes that service connection for left and right leg blood clots is not warranted on a secondary basis is such is caused or aggravated by her service connected left ankle disability. The Veteran’s statements regarding her current symptoms and in-service events are credible. While the Veteran reports that her left leg and right leg blood clots are generally related to her service-connected left ankle disability the record does not reflect that she has the requisite training or expertise to offer a medical opinion linking a current disability to a service-connected disability or aggravation of such and as such the Veteran is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The competent medical evidence of record especially the November 2020 VA examination is entitled to significant probative weight. The examiner noted that the Veteran’s bilateral blood clots and bilateral varicose veins are separate conditions that do not have a pathophysiological relation to the residuals of her left ankle sprain. The examiner found that the claimed conditions of left and right leg blood clots are less likely than not proximately due to or the result of the Veteran’s service connected condition. Additionally, the Veteran’s bilateral leg blood clots are independent of the left knee patellofemoral pain syndrome and right knee degenerative arthritis. Additionally, the examiner found that it is less likely than not that the Veteran’s bilateral blood clots and bilateral varicose veins were aggravated by a service-connected disability. The examiner noted that these are separate conditions that have no pathophysiological relation to the Veteran’s service-connected bilateral patellofemoral pain syndrome with degenerative arthritis and left ankle strain. As such service connection on a secondary basis is not warranted. As to direct service connection, the Veteran has not alleged that her left and right leg blood clots began in-service or are a direct result of an injury in-service and no manifestations of such are noted in the record. As such the Board will not pursue entitlement to service connection on a direct basis. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for left leg and right leg blood clots as due to a service-connected left ankle disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claims are denied. 1151 ELIGIBILITY The Veteran contends that her left leg blood clot disability, right leg blood clot disability and her right foot Charcot are a result of VA care and treatment. The Veteran contends that these disabilities arose from and worsened as a result of negligence and error on the part of VA treatment providers. In pertinent part, section 38 U.S.C. § 1151 provides for compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. A disability or death is a qualifying additional disability if the disability or death was not the result of the Veteran’s willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and (2) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran’s additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361I(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361I(2). Additional disability or death caused by a veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361I(3). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran’s additional disability or death (as explained in paragraph I of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d). In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of § 17.32 of this chapter. 6. Entitlement to compensation under 38 U.S.C. § 1151 for right leg blood clots 7. Entitlement to compensation under 38 U.S.C. § 1151 for left leg blood clots The Veteran contends that her left and right leg blood clot disabilities are the result of VA negligence in VA care and treatment. For the sake of brevity, the Board will discuss the Veteran’s claims for compensation pursuant to 38 U.S.C. § 1151 for right leg blood clots and left leg blood clots together. The Veteran reports she was given Motrin by VA treatment providers which resulted in her left and right leg blood clots, which was negligence, as she had an allergy. The Veteran testified in November 2019 that she was prescribed Motrin by VA treatment providers and that this resulted in cutting off the blood flow to her right and left foot, and the subsequent development of her left and right leg blood clots. The Veteran testified that she believes VA treatment providers prescribing her Motrin lead to blood clots which damaged her circulation and resulted in ongoing symptoms. The Veteran reports that she was seen in May 1994 due to ongoing left foot and ankle pain and then several weeks later she developed blood clots in both her legs which required an emergency hospital stay. The Veteran contends that her ongoing pain, hospital stays, and degenerative symptomology of her feet is related to VA prescribing her Motrin. The Veteran is competent to describe her symptoms, and occurrence of ongoing worsening symptoms since treatment, and to this extent, these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has an additional left leg blood clot disability and additional right leg blood clot disability proximately caused by VA treatment; and if the proximate cause of the additional disability was some element of fault on the part of VA or was an event not reasonably foreseeable. VA treatment records have been associated with the claims file. May 1994 VA treatment records note the Veteran was seen for a painful and swollen ankle and was diagnosed with a left ankle sprain and Motrin and a warm compress was recommended. Private treatment records note the Veteran was hospitalized at Harrisburg Hospital in June 1994 for bilateral calf thrombosis. The Veteran was treated with Heparin and Coumadin. Private treatment records note the Veteran was on necessary hormone replacement therapy and subsequently developed bilateral calf thrombosis. In addition, September 1996 VA treatment records note the Veteran was seen and hospitalized for a left lower extremity DVT and placed on Heparin and then Coumadin. The Veteran reported swelling in her legs and cramps with symptoms for approximately 1 week. A September 25, 1996 ultrasound noted DVT. It was noted that it needed to rule out whether the Veteran had a coagulation-estrogen induced hypercoagulability versus a possible hereditary/acquired etiology for hypercoagulability. A follow up ultrasound several days later was negative for bilateral DVT. Treatment records note that a possible allergy to salsalate was suspected. The Veteran was afforded a VA examination in August 2015. The Veteran reported tingling, numbness and pain in her bilateral lower extremities since she had blood clots in her lower legs after taking ibuprofen. The examiner noted poly sensory neuropathy of the right and left lower extremity with venous stasis disease status post recurrent DVTs with greenfield filter placement. The examiner noted that the Veteran was on estrogen since 1989 and has continued on it after having recurrent DVTs in 1996 and 2003. Over time the Veteran reported losing feeling in her feet up to her knees with chronic pain in her ankles and feet. Symptoms attributable to a peripheral nerve condition included severe constant right and left lower extremity pain, severe right and left lower extremity intermittent pain, severe right and left lower extremity paresthesia and severe right and left lower extremity numbness. Muscle strength testing was 4/5 bilaterally with no muscle atrophy. Regular use of a wheelchair, brace and walker and occasional use of crutches and a cane as assistive devices was noted. The Veteran had decreased sensation of the lower extremities to light touch and temperature which is consistent with polysensory neuropathy that was termed idiopathic by a neurologist in the past. The neuropathy symptoms occurred after the DVTs of the lower extremities. The examiner found the Veteran’s peripheral nerve condition impacts her ability to work in that she is precluded from climbing, and walking without assistive devices and standing for more than a few minutes due to fall risk. Then the Veteran was afforded a VA examination in November 2020. The Veteran reported that she had blood clots in her legs bilaterally in 1994 after she was given Motrin by a VA treatment provider. The examiner noted left and right leg blood clots and bilateral varicose veins. The examiner found that the Veteran did not suffer from an additional disability due to complications from treatment by VA in 1994 and 1996, and VA prescribed use of Motrin. The examiner noted that Motrin does not cause blood clots or varicose veins. Rather, the examiner noted that the mechanism of action for Motrin is as a blood thinner and this would not cause the additional disabilities. As such the examiner found that the Veteran does not have an additional disability due to the VA prescribed use of Motrin. Further, the examiner found that the Veteran’s left and right leg blood clots were not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment or examination. The examiner noted that there is no evidence of careless or negligence on the part of VA. As the examiner noted that the use of Motrin would not result in blood clots or varicose veins. Further, the examiner found that any additional disability was not proximately caused by an event not reasonably foreseeable, and the risk of that event was not the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures. The examiner noted that the use of Motrin would not result in blood clots or varicose veins. After consideration of all the evidence of record the Board finds that the weight of the evidence is against finding that entitlement to compensation under the provisions of 38 U.S.C. § 1151 is warranted. As an initial matter, and noted above, the Board must determine whether the Veteran has an additional right and left leg blood clot disability as a result of VA care and treatment in 1994 and 1996. The VA examiner in November 2020 found that there was no evidence of an additional right and left leg blood clot disability was a result of VA care and treatment in 1994 and 1996. The Board has thoroughly considered the Veteran’s lay contentions and testimony, in particular her reports that her right and left leg blood clot disability is due to VA prescribing Motrin for which she had an allergy. The Veteran contends that VA negligence resulted in her ongoing left and right leg blood clot disability. While the Veteran reports that her left and right leg blood clot disability is a result of negligence by VA, the record does not reflect that she has the requisite training or expertise to link a medical complication or disability to use of a specific medication or address medically known complications establishing a nexus, and as such the Veteran is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and is entitled to significant weight. In particular the Board finds the November 2020 VA opinion is entitled to significant probative weight. As such the Board finds that the Veteran does not have an additional left and right leg blood clot disability. For the sake thoroughness the Board will next address whether the causation requirements for a valid claim have been met. The Board finds that the Veteran’s left and right leg blood clots were not caused by VA care or treatment. There is no evidence VA failed to exercise the degree of care that would be expected of a reasonable health care provider and the Board concludes that there is no evidence of carelessness, negligence, lack of skill or similar incidence of fault on the part of VA personnel. VA treatment records in May 1994 note the Veteran was seen for a painful and swollen ankle and was diagnosed with a left ankle sprain and Motrin and a warm compress was recommended. Private treatment records note the Veteran was hospitalized at Harrisburg Hospital in June 1994 for bilateral calf thrombosis. The Veteran was treated with Heparin and Coumadin was started. Private treatment records note the Veteran was on necessary hormone replacement therapy and subsequently developed bilateral calf thrombosis. Then September 1996 VA treatment records note the Veteran was seen and hospitalized for a left lower extremity DVT and placed on Heparin and then Coumadin. The Veteran reported swelling in her legs and cramps with symptoms for approximately 1 week. It was noted that it needed to be ruled out whether the Veteran had a coagulation-estrogen induced hypercoagulability versus a possible hereditary/acquired etiology for hypercoagulability. Although the Veteran reported that she was prescribed Motrin and then this resulted in her left and right leg blood clots such is not described anywhere in the records, that Motrin prescribed in May 1994 resulted in her June 1994 bilateral calf thrombosis. The November 2020 VA examiner found that Motrin does not cause blood clots or varicose veins. Rather, the examiner noted that the mechanism of action for Motrin is as a blood thinner and this would not cause the additional disabilities the Veteran has. Further, the examiner found that the Veteran’s left and right leg blood clots were not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment or examination. The examiner noted that there is no evidence of careless or negligence on the part of VA. As the examiner noted that the use of Motrin would not result in blood clots or varicose veins. Further, the examiner found that any additional disability was not proximately caused by an event not reasonably foreseeable, and the risk of that event was not the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures. The examiner noted that the use of Motrin would not result in blood clots or varicose veins. With respect to whether the Veteran was fully informed as to the risks of VA treatment, the Veteran has not advanced such an argument. Further, as discussed above, the Veteran’s claimed symptoms have not been medically attributed to her VA treatment in 1994 and 1996 or otherwise to her treatment with VA. The Board has thoroughly considered the Veteran’s contentions and is sympathetic to her frustration that her left and right leg blood clot disability was caused by VA care and treatment in 1994 and 1996. However, the Board finds the preponderance of the probative evidence is against her contentions as the Veteran does not have an additional left and right leg blood clot disability that was due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault in furnishing care or treatment by VA medical professionals, and were not reasonably foreseeable risks of treatment, or that he was not fully informed as to the nature of the treatment, potential risks and alternatives. As such, the criteria for entitlement to compensation under 38 U.S.C. § 1151 for an additional left and right leg blood clot disability have not been met. Accordingly, as the preponderance of the evidence is against the claims for benefits pursuant to 38 U.S.C. § 1151, the benefit of the doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 8. Entitlement to compensation under 38 U.S.C. § 1151 for right foot Charcot The Veteran previously contended that service connection was warranted for his right foot Charcot, to include as due to a service-connected disability. During the course of the appeal in a December 2020 rating decision service connection was granted for right foot Charcot. The Veteran also contended in the alternative that her additional right foot Charcot disability is a result of VA care and treatment. As noted above, the RO has already determined that service connection is warranted for right foot Charcot, which is the benefit sought under the Veteran’s 38 U.S.C. § 1151 claim. Moreover, compensation for service-connected disability is a greater benefit than compensation under 38 U.S.C. § 1151. See Hornick v. Shinseki, 24 Vet. App. 50, 53-55 (2010) (examining the different ancillary benefits available to service-connected veterans compared to those receiving compensation under section 1151 and observing that section 1151 does not accord service-connected status to a veteran's disability or death). Thus, there is effectively no longer any remaining allegation of error of fact or law concerning the issue of entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for right foot Charcot because if any additional disability was incurred from VA care and treatment performed on the Veteran at the VA facility she would already be compensated for such residuals. See 38 U.S.C. §§ 7104, 7105(d)(5). Due to the grant of service connection for right foot Charcot, the Veteran’s claim of entitlement to compensation under 38 U.S.C. § 1151 for right foot Charcot is moot and is dismissed. Entitlement to TDIU prior to November 14, 2020 The Veteran contends that entitlement to TDIU is warranted. The Board notes that during the course of the appeal TDIU was granted in a December 2020 rating decision effective November 14, 2020. As such, consideration for entitlement to TDIU prior to November 14, 2020 is currently before the Board. 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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16 (a). When two or more disabilities are treated as one, the ratings for those disabilities are combined using the combined ratings table. 38 C.F.R. § 4.25. If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. In this case the Veteran met the threshold criteria for TDIU prior to November 14, 2020. See 38 C.F.R. § 4.16. Prior to November 14, 2020,the Veteran was service-connected for a left ankle sprain rated as 40 percent disabling, irritable bowel syndrome rated as 30 percent disabling, low back strain rated as 20 percent disabling, right knee patellofemoral pain syndrome rated as 10 percent disabling, left knee patellofemoral pain syndrome rated as 10 percent disabling, right foot Charcot rated as noncompensable, left fifth metacarpal status post fracture rated as noncompensable and scars of the right and left foot rated as noncompensable; for a total disability rating of 70 percent. The Veteran had one disability rated at 40 percent and a combined total rating of 70 percent during this period on appeal, meeting the threshold criteria for TDIU. The Veteran served on active duty in the U.S. Army from May 1980 to May 1983. In service the Veteran’s military occupational specialty (MOS) was a military police officer. Prior to service the Veteran graduated from high school. Post service the Veteran completed an associate’s degree in biomedical technical repair. Post-service the Veteran has experience working as a mechanic, in the construction field, in law enforcement and as a biomedical repair technician. The Veteran previously worked as a VA police officer at Tucson VA Medical Center and as a deputy sheriff in New Mexico. The Veteran contends that she has been unable to work since August 2017 due to her service connected IBS, ankle, foot and knee disabilities. The Veteran reports that she is no longer able to work due to her service-connected disabilities and she has difficulty standing, walking, lifting carrying, running and pushing items. She also reports that at times she has difficulty completing activities of daily living due to pain. She reports a previous history of working as a police officer, home improvement contractor and auto mechanic. Additionally, the Veteran reported that she completed training as a biomedical repair technician in 2011. The Veteran reports regular use of VA prescribed pain killers to treat pain of the legs and feet. The Board acknowledges that there are conflicting opinions of record as to whether the Veteran is unable to secure or follow substantially gainful employment due to her service-connected disabilities during the period on appeal. The Veteran was afforded VA examinations in August 2015. The examiner noted as to the Veteran’s left ankle disability such impacts her ability to perform occupational tasks. The examiner noted that the Veteran is precluded from laborious jobs or jobs requiring prolonged standing and walking without assistive devices or use of a wheelchair. A VA back examination noted that the Veteran’s low back disability impacts her ability to work in that she is precluded from laborious jobs or jobs requiring prolonged standing, walking or lifting over 10 pounds. A May 2016 opinion from the Veteran’s VA treating podiatric surgeon found that based on the Veteran’s right foot Charcot and ongoing left foot and ankle pain she is disabled and more likely than not she will be permanently disabled for the foreseeable future. The treatment provider noted that all of the Veteran’s lower extremity pain in her foot and ankle is directly related to her in-service injury. These long term injuries and the overuse of her right leg and foot have resulted in increased symptomology. Social Security Administration (SSA) records have been associated with the claims file. A March 2015 determination found that the Veteran was not disabled for SSA purposes. In the Veteran’s June 2017 VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability the Veteran reported that she last worked part time in August 2017. The Veteran reported that she became too disabled to work in August 2008. The Veteran reported completing a training program in biomedical repair technician in 2011. The Veteran reported most recently working as an electronic technician from January 2015 to August 2017. She reported prior experience in sales and as a police officer. The Veteran reported that her service connected disabilities no longer allowed her to work due to increased pain, difficulty ambulating and getting around due to her inability to weight bear and flare ups of her IBS. VA treatment records have been associated with the claims file. The Veteran reported and treatment records note the Veteran consistently attended her VA appointments and advocates for herself. The Veteran maintains her appointments, communicates with VA treatment providers. Treatment records note the Veteran regularly uses a wheelchair due to difficulty weight bearing as a result of her service-connected foot and ankle disabilities. Treatment records note during flare ups of pain at times the Veteran is unable to complete activities of daily living. Further, at different times during the appeal period the Veteran has been prescribed narcotic pain medications. The Veteran has past experience working as police officer, in sales, in construction and as a biomedical repair technician. The Veteran’s lay statements and medical opinions of record note that the Veteran is no longer able to lift, stand or weight bear on his feet and ankles due to his service-connected ankle and feet disabilities. Further, the June 2016 opinion from the Veteran’s VA treating podiatric surgeon found that based on the Veteran’s right foot Charcot and ongoing left foot and ankle pain she is disabled and more likely than not she will be permanently disabled for the foreseeable future. Further VA examinations in August 2015 noted that the Veteran’s service connected ankle and foot disabilities noted that the Veteran’s low back, ankle and foot disabilities impacts her ability to work in that she is precluded from laborious jobs or jobs requiring prolonged standing, walking or lifting over 10 pounds. Further, the Veteran reports that while working as a biomedical repair technician she had difficulty completing tasks due to increased pain and that significant accommodations were made due to symptomology associated with her service-connected disabilities. The Veteran reports she had to stop working due to increased pain, significantly difficulty ambulating and difficulty completing activities of daily living. There are opinions of record note that Veteran’s service-connected ankle, foot and back disabilities and associated symptomology do not interfere with her overall functioning. SSA records note the Veteran is able to complete activities of daily living. While, there is conflicting evidence of record regarding performing occupational tasks the Board finds given the Veteran’s education and employment background it is unlikely that she could find substantially gainful employment in her area of experience and training which is in law enforcement, construction and biomedical technical repair. The Veteran’s and associated opinions and treatment records note that she is no longer able to work in the field of law enforcement due to physical limitations associated with her service-connected disabilities. As to the Veteran’s most recent employment working as a biomechanical repair technician the associated opinions and treatment records note increased pain and symptomology and difficulty ambulating and weight bearing and that Veteran is no longer able to work in the field of biomechanical technical and repair due to her physical limitations associated with her service-connected disabilities. The Board finds the June 2016 VA opinion is entitled to significant probative weight. The opinion found that based on the Veteran’s right foot Charcot and ongoing left foot and ankle pain she is disabled and more likely than not she will be permanently disabled for the foreseeable future. The treatment provider noted that all of the Veteran’s lower extremity pain in her foot and ankle is directly related to her in-service injury. These long term injuries and the overuse of her right leg and foot have resulted in increased symptomology. When considering the collective impact of the Veteran’s service connected disabilities and the Veteran’s previous work experience, the Board concludes that the Veteran was unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities. Although the opinions as to the nature and severity of the Veteran’s occupational impartment individually and in combination, are not all supportive, the Board finds that the evidence of record is in relative equipoise as to whether the manifestations of her service-connected disabilities combine to render her unable to secure or follow a substantially gainful employment, during this period on appeal. Resolving reasonable doubt in the Veteran’s favor the Board will grant the claim. As such, the Board finds that entitlement to TDIU, prior to November 14, 2020 is warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.