Citation Nr: 21039797 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-03 086 DATE: July 1, 2021 ORDER Service connection for sleep apnea is granted. An initial disability rating greater than 10 percent for residuals of a right ankle sprain is denied. A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran's sleep apnea has been medically associated with weight gain related to service-connected post-traumatic stress disorder (PTSD) and lower extremity orthopedic disabilities. 2. The Veteran's right ankle sprain residuals are manifested by pain, limitation of motion, and flare-ups; however, at no point during the appeal period has his right ankle motion been less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. 3. The Veteran is currently service-connected for PTSD, left shoulder impingement syndrome, residuals of a right ankle sprain, a left distal tibia fracture, residuals of a left great toe fracture, onychomycosis of the left great toe, bilateral hearing loss, and tinnitus with a combined disability rating of 90 percent; additionally service connection for sleep apnea will soon be implemented. 4. The Veteran has two years of college and work experience as a building equipment mechanic and a truck driver; he took disability retirement from his last job in 2017. 5. The Veteran is unable to obtain or retain work on account of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for a disability rating in excess of 10 percent for residuals of a right ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.71a, Diagnostic Code 5271. 3. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to July 1984. He was awarded the Combat Action Ribbon, the Armed Forces Expeditionary Medal, and the Marine Corps Expeditionary Medal, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) from Agency of Original Jurisdiction (AOJ) decisions of May 2017 and June 2018. In September 2020, the Veteran presented sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge. Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service connection Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Disability which is proximately due to or the result of a service-connected disease or injury also shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. 1. Sleep apnea A December 2017 VA medical opinion is to the effect that the Veteran's sleep apnea is not related to his service-connected PTSD, but is rather caused by obesity and soft tissue abnormalities within the airway. A September 2020 medical opinion submitted by the Veteran's attorney also addresses the Veteran's obesity and his PTSD. According to this opinion, which also contains a review of the Veteran's medical history, to include his orthopedic problems, the Veteran's obesity is aggravated by his service-connected PTSD and his lower extremity orthopedic disabilities, both of which impact his ability to exercise. The reviewer pointed to medical studies showing that Veterans with PTSD have an increased risk of being persistently obese due to engagement in unhealthy habits as a result of stress or to assist with emotional regulation. As the Veteran's medical records document his diminished interest in many activities, the reviewer concluded that he fits into the unhealthy patterns illustrated by these studies. On balance, the Board finds the private medical opinion to be more thorough, and better explained than the VA opinion. According the Veteran the benefit of the doubt, we hold that service connection for sleep apnea, as aggravated by PTSD and lower extremity orthopedic disabilities, is warranted. Increased ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If a Veteran has an unlisted disability, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20; see 38 C.F.R. § 4.27 (providing specific means of listing diagnostic code for unlisted disease or injury). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an original or an increased rating, it is presumed that the Veteran seeks the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In evaluating claims for increased ratings, we must evaluate the Veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. A disability of the musculoskeletal system is measured by the effect on ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion in assigning the most accurate disability rating. 38 C.F.R. § 4.40. Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. The Board has a special obligation to provide a statement of reasons or bases pertaining to § 4.40 in rating cases involving pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Disability of the joints, is measured by abnormalities of motion, such as limitation of motion or hypermobility, instability, pain on motion, or the inability to perform skilled motions smoothly. 38 C.F.R. § 4.45. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. Under section 4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in. Hicks v Brown, 8 Vet. App. 417, 421 (1995). Effective February 7, 2021, the applicable rating criteria for rating limited ankle motion were revised. 85 Fed. Reg. 76453 (Nov. 30, 2020). When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The final rule did not specifically permit retroactivity of the changes. The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board will consider all applicable criteria in evaluating the Veteran's claims. 2. Right ankle sprain Service connection for residuals of a right ankle sprain was granted by the Board in June 2018. The AOJ implemented the grant the same month, assigning a 10 percent disability rating effective in March 2010. The Veteran perfected a timely appeal as to the disability rating assigned. During a September 2010 VA examination, the Veteran reported his ankle felt unstable and in constant pain. He stated he required a handrail going downstairs. He was taking prescription pain medication. He used ACE bandages on the ankle. Upon examination, he was noted to have antalgic gait. There was tenderness in the ankle joint, but no instability, or tendon abnormality. He had dorsiflexion to 10 degrees and plantar flexion to 40 degrees in the right ankle, with pain on motion. There was no additional limitation after repetition. The examiner described the Veteran's functional limitations as including decreased mobility, decreased strength, and pain in the right ankle. The report of a March 2016 private medical examination reflects that the Veteran manifested full range of right ankle motion at that time. The examiner noted effusion, stiffness, and pain with prolonged standing. During a July 2019 VA examination, the Veteran reported his ankle was stiff, with sharp pains at times, but achy all the time. He reported that the ankle clicked when he walked, and that it felt like it gave out sometimes. He had flareups which last for a couple of hours at a time; there are no precipitating factors for flare-ups. His right ankle made it difficult going up and down stairs. He reported regular use of a cane, for his back and ankle. Range of motion testing showed limitation of dorsiflexion to 10 degrees and limitation of plantar flexion to 30 degrees. The examiner noted pain during the range of motion exercises, but opined that the pain did not result in further functional loss. The Veteran was able to perform repetitive use testing with no further loss of function. There was localized tenderness or pain on palpation of the right ankle joint. There was evidence of pain with weight bearing. Muscle strength was normal with no atrophy. VA and private medical treatment records throughout the appeal period indicate that the Veteran has been taking prescription pain medication, for orthopedic pain in general, to include serious back pain. This medication helps him manage his right ankle pain also. During the September 2020 hearing on appeal, the Veteran credibly described his right ankle condition in many of the same terms as during the July 2019 examination. His testimony was consistent with the history and impairment he had described at the examination. He also testified that his ankle flare-ups were happening more frequently. Prior to February 7, 2021, Diagnostic Code 5271 provided that moderate limited motion of the ankle was rated as 10 percent disabling. Marked limited ankle motion was rated as 20 percent disabling. 38 C.F.R. § 4.71a. These are the provisions which apply to the Veteran's case prior to February 7, 2021. Plate II set forth at 38 C.F.R. § 4.71 provides a pictorial depiction of ankle motion in dorsiflexion and plantar flexion. Recent revisions to the criteria of Diagnostic Code 5271 effective February 7, 2021, clarify that prior regulatory references to "marked" means less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and that "moderate" means less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. In proposing this rule, VA indicated that this standard was currently used by VA and was being codified "as a clarification of current policy and would ensure consistent application of these criteria among rating personnel." See 82 Fed. Reg. 35719, 35723 (Aug. 1, 2017). This is the standard used by the AOJs throughout the appeal period, and indeed, the standard as defined by the VA's adjudication manual was noted and applied by the AOJ in the June 2018 decision granting service connection. The Board therefore finds that adding this definition to the criteria in Diagnostic Code 5271 was a non-substantive change which does not require AOJ review in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Upon careful review, the Board determines that the currently assigned 10 percent disability rating is more nearly analogous to reflect the Veteran's current right ankle functioning. He has near-constant pain in the ankle, flare-ups, and limitation of function, especially in terms of navigating stairs. His range of motion measurements with pain upon motion, however, fit squarely within the criteria set forth for the 10 percent disability rating, and have fit squarely within the 10 percent criteria throughout the lengthy initial appeal period. At no point during the appeal period, has his right ankle motion been less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. His range of motion cannot be viewed as "marked" at any point during the appeal period. Because the Veteran does not have ankylosis, functional ankylosis or malunion of any ankle joints or bones, none of the other Diagnostic Codes pertaining to the ankle area are appropriate for rating the Veteran's ankle impairment in this instance. The preponderance of the evidence is against a disability rating in excess of 10 percent for residuals of a right ankle sprain. 3. TDIU If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability is warranted as a result of that disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran asserts that his combined disabilities, both mental and physical, preclude employment. Because he is seeking an increased disability rating, and he is asserting he cannot work due to service-connected disabilities, the Board will review his claim for TDIU at this point. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. Alternatively, a total disability rating for compensation based on unemployability may be assigned to a Veteran who is unable to secure and follow a substantially gainful occupation by reason of his/her service-connected disabilities. The Veteran's employment history, educational and vocational attainment as well as his particular physical disabilities are to be considered in making a determination on unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether the Veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose, ibid. The Veteran is currently service-connected for PTSD, left shoulder impingement syndrome, residuals of a right ankle sprain, a left distal tibia fracture, residuals of a left great toe fracture, onychomycosis of the left great toe, bilateral hearing loss, and tinnitus. His combined disability rating is 90 percent. Additionally, the Board has now granted service connection for sleep apnea. He asserts he is unable to work due to these disabilities. The Veteran completed two years of college. His most recent employment was as a building equipment mechanic with the postal service, a position he held for eleven years. He took disability retirement from this job. Prior to that he was driving a truck. During the September 2020 hearing on appeal, he testified that his educational background was in music theory, but he had never held employment in that area. He also testified to his high levels of frustration with different kinds of situations related to his PTSD, and his need to be left alone on the job. The medical evidence of record is essentially to the effect that the Veteran cannot work for various reasons. The Social Security Administration has awarded him disability benefits on account of two nonservice connected disabilities: diabetes and a lumbar spine disorder. However, his service-connected disabilities, as set forth above, are significant, and impact both mental and physical functioning. The question before the Board, then, is whether the Veteran is unemployable solely due to his service-connected disabilities, without regard to nonservice-connected impairment. Upon careful review of the evidence, the Board is persuaded that the combination of his PTSD together with his physical disabilities preclude further work in any of the areas in which he as experience. Regardless of his other nonservice connected disabilities, which are significant, we hold that his service-connected disabilities, in combination, reasonably preclude employment. The evidence thus supports the award of TDIU. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Heather J. Harter, 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.