Citation Nr: 21031826 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-14 746 DATE: May 24, 2021 ORDER For the entire rating period on appeal, a separate 10 percent rating for right ankle instability is granted. REMANDED A disability rating in excess of 20 percent for the service-connected right ankle disability with limitation of motion is remanded. A separate rating, in excess of 10 percent for right ankle instability, is remanded. A total disability rating based on unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran's right ankle disability has been manifested by instability throughout the rating period on appeal. CONCLUSION OF LAW The criteria for a separate 10 percent rating for right ankle instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1972 to May 1973. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to a compensable disability rating for the service-connected right ankle lateral ligament sprain. In December 2017, VA received the Veteran's Notice of Disagreement (NOD). In March 2018, the RO issued a Statement of the Case (SOC). In March, VA received the Veteran's VA Form 9 appeal to the Board. In a December 2019 rating decision, the RO increased the disability rating for the service-connected right ankle lateral ligament sprain from noncompensable to 10 percent, effective from October 18, 2019. In a March 2020 decision, the Board granted a disability rating of 20 percent for the service-connected right ankle lateral ligament sprain for the entire period on appeal. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). A March 2020 rating decision implemented the Board's grant of a 20 percent for the service-connected right ankle lateral ligament sprain, effective from June 12, 2017. In a December 2020 Court Order granting a Joint Motion for Partial Remand (JMPR) the Court vacated the Board's March 2020 decision in part and remanded the case for further development in compliance with the directives specified in the JMPR. At the outset, the evidence indicates that the Veteran has been unemployed throughout the period on appeal. Furthermore, VA records show that the Veteran was unable to receive medical clearance for compensated work therapy (CWT), in part, due to pain from his right ankle. A treating VA physician also found that the Veteran was "unemployable" in his current condition and advised the Veteran to seek assistance from a social worker and apply for Social Security Administration (SSA) disability. See VA primary care telephone encounter note dated October 6, 2020. Given that there is evidence of unemployability associated with the service-connected disability on appeal, a claim for a TDIU is reasonably raised by the record as part and parcel of the claim for increased rating for the service-connected right ankle lateral ligament sprain. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Right Ankle Instability The criteria for rating ankle disabilities does not include a code specifically addressing ankle instability. With regard to ankle instability, the Board will grant a 10 percent rating by rating by analogy to DC 5284 which provides for a 10 percent rating for moderate foot disability. See 38 C.F.R. § 4.20 (directing VA to rate by analogy when a condition is unlisted); see also Morgan v. Wilkie, 31 Vet. App. 162 (2019) (directing VA to exhaust all schedule alternatives before resorting to an extraschedular rating). A 10 percent rating is warranted in this case as the Veteran has reported instability throughout the claims period. See English v. Wilkie, 30 Vet. App. 447 (2018) (holding that the Board must consider lay reports of joint instability). VA examination reports have also confirmed instability in the right ankle. See e. g., August 2017 and December 2019 VA ankle examination reports. The Board notes that the Veteran's instability symptoms are separate and distinct form his painful limitation of motion in the right ankle. As such, the separate 10 percent rating for instability does not violate the rule against pyramiding. See 38 C.F.R. § 4.14 (2020). The issue as to whether a separate rating in excess of 10 percent for instability of the right ankle is being remanded for further development. REASONS FOR REMAND Limitation of Motion and Instability of the Right Ankle As noted by the December 2020 JMPR, the Board failed to ensure that VA satisfied its duty to assist in locating all relevant private treatment records identified by the Veteran and all medical records within VA's possession. In this regard, VA treatment records currently associated with the claims file reflect that the Veteran received treatment for his right ankle from Dr. Gorby, a non-VA podiatrist and Dr. Malik, a non-VA neurologist. A September 2018 primary care outpatient note reflects that the Veteran was seeing Dr. Gorby for weakness and numbness and both ankles. A note from October 2018 shows that Dr. Gorby provided treatments including ultrasound, massage, a home exercise program (HEP), and ankle strengthening. Furthermore, VA treatment records indicate that the Veteran received several neurological evaluations regarding lower extremity symptoms from Dr. Malik. Most notably, VA treatment records from October 9, 2018 and November 26, 2018 show that VA was in possession of medical files faxed by Dr. Malik. The documents in question were November 2018 and April 2019 neurological evaluations. These records were not scanned into the VistA system. No private treatment records from either non-VA source described above were of record when the Board adjudicated the claim in March 2020. Following the December 2020 JMPR, in March 2021, VA received Veteran-submitted private treatment records covering visits to Dr. Malik between September 2018 and July 2019 and to Dr. Gorby on January 26, 2018. Furthermore, in an accompanying correspondence, the Veteran waived initial consideration of this evidence by the RO, the agency of original jurisdiction (AOJ). However, although the evidence submitted appears to contain the November 2018 and April 2019 neurological evaluations by Dr. Malik, VA treatment notes suggest that the Veteran received extensive treatment for his right ankle from Dr. Gorby, for whom only one treatment note is of record. Furthermore, since the last AOJ decision on the merits, numerous VA treatment records have been associated with the claims file, some of which pertain to treatment of the Veteran's right ankle. In particular, a September 2020 CWT medical clearance note reflects that the Veteran fell three times within the past month due to right ankle instability. During the same visit, the Veteran reported that he was unable to sit or stand for prolonged periods of time due to right ankle pain. Pertinent evidence that is submitted to the Board following the last adjudication by the AOJ, including evidence submitted by VA, must be referred for initial review unless this right has been waived by the Veteran or the Veteran's representative in writing or on the record during a Board hearing. 38 C.F.R. § 20.134(c). Initially, the December 2019 rating decision is considered the last adjudication by the AOJ. In this regard, the March 2020 rating decision merely implemented the grant of a 20 percent disability rating for the service-connected right ankle lateral ligament sprain by the March 2020 Board decision and was not a decision on the merits. The Veteran has not submitted a waiver of AOJ jurisdiction over the new evidence described above and waiver cannot be presumed for evidence submitted by VA. 38 U.S.C. § 7105(e). As this evidence is pertinent to the Veteran's claim, it would be prejudicial for the Board to issue a decision as to this claim without initial AOJ review in the first instance. Finally, the above-cited VA treatment note suggests that the Veteran's right ankle lateral ligament sprain has worsened since his last VA examination of his right ankle in December 2019, during which the Veteran did not report falling due to right ankle instability. Notably, during that examination, the examiner did not perform joint stability tests. Therefore, as the record shows that ankle instability is a worsening component of the Veteran's disability, on remand, the Veteran should be provided with a new VA examination for his right ankle lateral ligament sprain. Accordingly, with appropriate authorization from the Veteran, the RO should obtain all relevant private treatment records identified by the Veteran and associate with the claims file all relevant private treatment records currently in VA custody. Moreover, the Veteran should be a provided with a new VA examination to evaluate the current severity of his right ankle lateral ligament sprain. After any additional development deemed necessary, the RO should readjudicate the claim based on all evidence of record, including all VA treatment records received since the March 2018 SOC. 38 C.F.R. § 19.37(b). TDIU As noted in the introduction, a claim for TDIU has been raised as part and parcel of the Veteran's claim for increased rating for the service-connected right ankle lateral ligament sprain. The Board's review of the inextricably intertwined issue of entitlement to a TDIU is deferred pending resolution of the remanded claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records; and, with appropriate authorization from the Veteran, obtain and associate with the claims file all of the Veteran's outstanding private treatment records relevant to the pending claim on appeal, including any treatment records from Dr. Gorby and Dr. Malik. Furthermore, associate any private treatment records already within VA custody with the claims file, including any records from Dr. Gorby and Dr. Malik. 2. Request from the Veteran a completed VA Form 21-8940, Application for Increased Compensation Based on Unemployability, to ascertain the Veteran's last date of employment, level of education, and work history. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ankle lateral ligament sprain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In particular, the examiner should indicate whether the Veteran's right ankle disability more nearly approximates ankylosis of the joint or a "severe" foot injury. 4. Then, readjudicate the claims on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.