Citation Nr: 21028721 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-01 987 DATE: May 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to combined service-connected disabilities, effective October 15, 2012, is granted. Entitlement to a disability rating in excess of 20 percent for a right ankle disability on an extra-schedular basis is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an extraschedular TDIU is remanded. FINDINGS OF FACT 1. For the period on appeal beginning October 15, 2012, resolving reasonable doubt in favor of the Veteran, his combined service-connected disabilities render him unable to secure and follow a substantially gainful occupation. 2. The competent evidence of record does not show that the Veteran's service-connected right ankle disability presents such an exceptional or unusual disability picture that renders the available schedular ratings inadequate nor results in marked interference with employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU due to combined service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25 (2020). 2. The criteria for a disability rating in excess of 20 percent for a right ankle disability on an extra-schedular basis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.20, 4.27, 4.71a (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from December 1970 to November 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2012 and August 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In July 2019, to support his claims, the Veteran testified at a hearing at the Board's office in Washington, D.C., before the undersigned Veterans Law Judge (VLJ). The transcript has been associated with the electronic claims file. Most recently, in a March 2020 decision, the Board remanded these claims for additional development. Unfortunately, the requested development has not been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a TDIU due to service-connected disabilities, effective October 15, 2012, is granted. The Veteran is seeking entitlement to a TDIU. Specifically, he contends that he is unable to obtain and maintain gainful employment due to his service-connected disabilities. See, e.g., July 2014 NOD. Total disability will be considered to exist 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. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation may be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). In this case, the Veteran is service connected for headaches; a lumbar spine disorder; a cervical spine disorder; right ankle tendonitis; left upper, right upper, left lower, and right lower extremity radiculopathy: right and left shoulder strain, right hip strain limitation of adduction, flexion, and extension; right great toe arthritis; left temporal scar; and right knee instability, painful motion, and arthritis. The Veteran's combined disability rating during the period on appeal beginning October 15, 2012, is at minimum, 90 percent. As such, for this period on appeal, the Veteran meets the objective criteria under 38 C.F.R. § 4.16 for consideration of a TDIU. The period on appeal prior October 15, 2012, is addressed in the remand portion of this decision. The central inquiry therefore lies in whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Whether a veteran is capable of substantial gainful employment is not a medical one but is rather a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) Turning to the evidence of record, throughout the period on appeal, the Veteran has been afforded multiple VA examinations for his service-connected disabilities. The Veteran has been found to have difficulty with standing, prolonged sitting, pushing, pulling, lifting, bending, and squatting due to his ankle, hip, shoulder, and knee disabilities. See, e.g., October 2020 VA Examinations; July 2013 VA Examinations; December 2012 VA Examination. In his December 2012 VA ankle examination and December 2013 VA back examination the Veteran also reported that he had to leave work due to pain in his ankle that prevented him from walking. Review of the VA treatment records additionally reveals a March 2013 VA examination addendum opinion to the December 2012 VA Examination. Regarding whether or not the Veteran's service connected disabilities render him unable to secure and maintain substantially gainful employment the examiner opined that it would be very difficult for the Veteran to secure and maintain substantially gainful employment whether it be physical or sedentary. He explained that the Veteran had to cease working in a factory due the constant pain in the right ankle. This pain has worsened, and he needs to sit down after one minute of walking. When he sits, he must change position constantly because of the pain intensifying in one position. Based on the foregoing, and in weighing the evidence of record, the Board finds that the Veteran's combined service-connected disabilities, to include his right ankle, knee, and hip disabilities; lumbar disability; cervical disability; bilateral upper extremity disabilities; and headaches; render him unable to secure and follow gainful employment. Specifically, the Board finds that based on the Veteran's inability to stand or sit for prolonged periods and his pain he is unable obtain and retain substantially gainful employment. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Accordingly, entitlement to a TDIU due to combined service-connected disabilities is granted. 38 C.F.R. § 4.16(a). 2. Entitlement to an extraschedular rating for right ankle disability is denied. The Veteran is seeking a higher rating for his right ankle disability. Specifically, the Veteran contends that his disability warrants a 20 percent disability rating. See July 2014 NOD. By way of history, in a March 2020 decision, the Board granted a 20 percent disability rating under Diagnostic Code 5271 and remanded the issue for extraschedular consideration. An extra-schedular rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims (Court) explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 38 C.F.R. § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service (Director) to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. Where the Board finds that an extra-schedular rating may be warranted based on the above factors, the Board cannot grant it in the first instance. Rather, it must remand the claim to the AOJ for referral to the Director. See Thun, supra. In the instant case, as noted above, the Board remanded the claim in March 2020 for referral to the Director. In an October 2020 VA memo, the AOJ issued a recommendation that the Director deny entitlement to a rating in excess of 20 percent for a right ankle disability on an extra schedular basis. The AOJ explained that VA examinations show that the Veteran has dorsiflexion from 0-15 degrees and plantar flexion from 0-35 degrees. The AOJ found that the Veteran's disability picture was not so unusual as to render impractical the application of the regular schedular criteria with such related factors as marked interference with employment or frequent periods of hospitalization. In a January 2021 administrative decision, the Director denied an extra-schedular rating. The Board recognizes that a Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). In doing so, the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). The Board also acknowledges that an earlier decision to refer the claim to the RO for extraschedular consideration is additionally not binding on whether the assignment of an extraschedular rating is warranted. A Board's decision to refer is based on a lower standard than the standard under 38 C.F.R. § 3.321(b)(1). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court addressed the different evidentiary standards in the context of an extraschedular TDIU referral. The Court held that the Board's determination to refer a case for extra-schedular consideration is a factual finding that does not bind the Board or require the Board to award an extra-schedular rating; however, if the Board denies the claim after referral, the Board "must provide adequate reasons or bases for deviating from its earlier referral decision." After a careful review of all evidence of record, for the reasons detailed below, the Board finds that the symptomatology and occupational impairment caused by the Veteran's right ankle disability are specifically contemplated by the schedular criteria, and that the Veteran is not entitled to an extraschedular rating for his service-connected right ankle disability. Simply put, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Presently, as noted above, the Veteran's right ankle disability is rated as 20 percent disabling under Diagnostic Code 5271. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Additionally, functional loss due to pain is rated at the same level where functional loss is impeded. Stated another way, a range of motion may be possible beyond the point when pain sets in, but for rating the disability, only to the extent pain limits motion is considered. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Ratings under Diagnostic Code 5271 are available at 10 percent for moderate limited motion and 20 percent for marked limited motion. Prior to February 7, 2021, the terms "moderate" and "marked" were not defined under VA regulations. Those terms also do not appear to have a generally 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. It should also be noted that use of terminology such as "moderate" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Alternative and additional Diagnostic Codes for the ankle are available under 38 C.F.R. § 4.71a , as follows: Under Diagnostic Code 5270, ankylosis of the ankle in plantar flexion less than 30 degrees is rated at 20 percent; ankylosis in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees is rated at 30 percent; and ankylosis in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity is rated at 40 percent. Under Diagnostic Code 5272, ankylosis of the subastragalar or tarsal joint is rated at 10 percent for ankylosis in good weight-bearing position and at 20 percent for ankylosis in poor weight-bearing position. Under Diagnostic Code 5273, malunion of the os calcis or astragalus is rated at 10 percent for moderate deformity and 20 percent for marked deformity. Under Diagnostic Code 5274, astragalectomy is rated at 20 percent. Turning to the record, VA treatment throughout the appeal period reveal chronic right ankle pain and difficulty walking. In December 2011 and December 2012 ankle DBQs, the Veteran was diagnosed with tendonitis. The Veteran reported flareups and experiencing pain. Walking and climbing steps increased the pain. He did not report physical therapy or injections. The Veteran was found to have limitation of motion and functional loss due to weakened movement, excess fatigability, incoordination, and pain. Disturbance of locomotion and interference with sitting, standing, and weight-bearing were also noted. There was no ankylosis or malunion of calcaneus. No other pertinent findings were noted, and the Veteran's ankle disability was not found impact his ability to work. In his July 2019 Board hearing, the Veteran reported that his ankle is always in the wrong position. The Board has compared the level of severity and symptomatology of the Veteran's service-connected right ankle disability with the established criteria found in the rating schedule as detailed above and agrees with the Director's determination that this disability is fully addressed by the rating criteria under which this disability is rated. In reaching this conclusion, the Board acknowledges that the schedular criteria have been exhausted. Specifically, a 20 percent disability rating is the maximum rating available under Diagnostic Code 5271. Although the Veteran contends that his ankle is always in the wrong position, the evidence of record also does not establish immobility or ankylosis of the Veteran's ankle, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy during the period on appeal. Therefore, the Board finds no basis upon which to assign increased disability ratings for the period on appeal under another Diagnostic Code on a schedular basis. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272-5274; March 2020 Board Decision. The Board additionally notes that a wide range of signs and symptoms are contemplated in the applicable rating criteria. Assessing the Veteran's right ankle disability under the schedular criteria above required application of the holdings in Deluca and Mitchell which require, in turn, consideration of 38 C.F.R. §§ 4.40 and 4.45. Section 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy. Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. Accordingly, virtually all of the manifestations of the Veteran's right ankle disability, to include pain and difficulty walking, standing, and sitting, are contemplated either specifically by the rating criteria, or by reference through the regulations pertaining to functional loss. Moreover, the evidence of record does not show that such an exceptional disability picture exhibits other related factors, such as marked interference with employment and frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Specifically, although the ankle DBQs of record do indicate some functional impairment due to the right ankle disability, the examiners do not indicate marked interference with employment or frequent hospitalizations due to the right ankle disability. In addition, although the Veteran may contend that he warrants a rating on an extra schedular bases because he asserts that he stopped working due to his service-connected right ankle disability, as indicated above, the Veteran has herein been granted entitlement to a TDIU, based in part on his service-connected right ankle disability. Accordingly, the evidence does not show that the Veteran's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, and the Board finds that the rating schedule is adequate to evaluate the Veteran's right ankle disability. Finally, the Board considered that under Johnson v. McDonald, 762 F3.d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. In this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific, rated disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. In this regard, as indicated above, the Board notes that the Veteran has herein been granted entitlement to a TDIU due to combined service-connected disabilities, to include the Veteran's right ankle disability. In sum, virtually all of the manifestations of the right ankle disability are contemplated either specifically by the rating criteria, or by reference through the regulations pertaining to functional loss. The few symptoms that are not contemplated by the rating criteria do not cause additional impairment that would establish entitlement to an extraschedular rating higher than the schedular ratings already in effect for the right ankle disability. As noted above, merely because a matter warrants referral for extraschedular consideration does not imply that an extraschedular rating higher than the currently assigned schedular rating must be assigned. Instead, the evidence must show that the combination of symptoms, including those not specifically contemplated by the rating criteria, are significant enough to warrant assignment of an extraschedular evaluation higher than the currently assigned ratings. That has not been shown in this case. In reaching this determination, the Board has considered the Veteran's competent lay assertions, to include his subjective complaints of pain and his ankle always being in the wrong position. The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). However, the Board finds that the objective medical findings by skilled professionals, which incorporate the Veteran's competent assertions, provide the most persuasive evidence regarding the limitations posed by the Veteran's right ankle disability. Based on the above, the Board finds that assignment of an extraschedular rating for the Veteran's right ankle disability is not warranted and the claim is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran is seeking service connection for sleep apnea. Specifically, he claims that his sleep apnea disability is due to his dental condition. As noted above, in a March 2020 decision, the Board remanded this issue for additional development. The Board noted that there is no current sleep apnea diagnosis included in the record but there were indications that the Veteran does not sleep. The Board found that there was enough evidence of record to trigger VA's duty to provide a sleep apnea examination and obtain an opinion. See 38C.F.R. §3.159(c). On remand, the RO obtained a nexus medical opinion. There is no indication that the RO obtained a VA examination. Accordingly, a remand is warranted for the RO to comply with the instructions of the March 2020 Board decision. 2. Entitlement to an extraschedular TDIU is remanded. The Veteran is seeking entitlement to a TDIU for the entire period on appeal. As noted above, in a March 2020 decision, the Board remanded the Veteran's TDIU claim so that entitlement to a TDIU can be considered under 4.16(a) and (b). If the Veteran did not meet the schedular evaluation for TDIU, extraschedular was to be considered as the Veteran reported that he had to stop working in a factory due to his ankle pain. See February 2013 Back VA Examination. Although the Veteran has herein been granted entitlement to a TDIU, effective October 15, 2012, there is no indication that the RO developed the Veteran's claim for an extraschedular TDIU for the remaining period on appeal. Accordingly, the Board finds that a remand is necessary to refer, for extraschedular consideration, the Veteran's TDIU claim for the rating period on appeal prior to October 15, 2012. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature, severity, and etiology of any sleep disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. The VA examiner/clinician should address the following: (a) Identify all sleep disorders disabilities, to include any sleep apnea. (b) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed sleep disorder, to include sleep apnea, had its clinical onset during active service or is related to service. (c) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed sleep disorder, include sleep apnea, is (i) caused by or (ii) aggravated by his service-connected dental condition. In doing so, the examiner should address a September 2019 third party correspondence, in which a private dentist provides a positive secondary nexus opinion. The examination report must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. 3. Following preparation of the requisite full statement (as noted above), submit the Veteran's claim for entitlement to a TDIU to the Director, Compensation Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Thereafter, the AOJ must implement the determinations of the Director, if so warranted. 4. Readjudicate the issues on appeal. If the benefits sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.