Citation Nr: 21040047 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-50 905 DATE: July 2, 2021 ORDER Entitlement to a disability rating of 20 percent for residuals of a right ankle fracture from October 14, 2019, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. Prior to October 14, 2019, the Veteran's residuals of a right ankle fracture were manifest by, at worst, plantar flexion to 35 degrees and dorsiflexion to 15 degrees resulting in moderate limitation of motion; from October, 14, 2019, the disability has manifested in marked limitation of motion of the ankle. 2. During the period of appeal, the Veteran's service-connected disabilities did not preclude him from obtaining and maintaining substantially gainful employment consistent with his level of education, prior work history, and training. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 20 percent for residuals of a right ankle fracture are met from October 14, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271. 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1991 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction. In January 2019, the Board remanded the claim. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the entire recorded history, and each disability must be considered from the viewpoint of the Veteran working or seeking work. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all increased rating claims, staged ratings must be considered for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s). Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a disability rating in excess of 10 percent for residuals of a right ankle fracture. The Veteran's service-connected ankle condition is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271, governing limited motion of the ankle. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, diagnostic code 5271 assigned a 10 percent rating for moderate limitation of motion and a 20 percent rating for marked limitation of motion. As of February 7, 2021, under the amended criteria, diagnostic code 5271 is amended to incorporate guidance from the M21 so that a 10 percent rating is warranted for moderate limitation of less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and a 20 percent rating is warranted for marked limitation of less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. When evaluating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 under any applicable diagnostic code pertaining to limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). The Veteran contends that he should be granted a higher rating for his right ankle condition due to the severity of his symptoms. He states that the condition causes him pain that has gotten worse, that he has severe arthritis, and that he has fallen 3 times due to instability. During a March 2011 medical appointment, the Veteran stated that his pain was becoming worse and he had sprained his right ankle 3-4 times over the last year. He had plantar flexion to 30 degrees and dorsiflexion to 15 degrees, and an x-ray indicated arthritis in the right ankle joint. In an April 2011 letter, the Veteran stated that because his condition had worsened, that he was required to wear an Arizona brace, and the brace made it difficult to walk and get around. See April 2011 Correspondence. During a May 2011 VA examination, the Veteran reported arthritis, instability, and a collapsed arch. He stated that he frequently rolled his ankle, that it hurt with weight bearing, and he had daily pain. Id. The examiner diagnosed mild right ankle degenerative joint disease and tibial tendon dysfunction. The examiner noted the Veteran walked with his brace on his right leg and a cane, and that he favored his right leg. The Veteran's pulse and sensory examination was normal, and there was no crepitus. The Veteran's plantar flexion was to 40 degrees, dorsiflexion to 20 degrees, inversion to 35 degrees, and eversion to 20 degrees. The examiner opined that overall, the ankle joint was stable, but the Veteran did roll the ankle on occasion. Id. During an October 2011 medical appointment, the Veteran stated that the brace was helping him significantly and he had no other significant complaints. See August 2016 VA Medical Records. He reported that his tendonitis had started to return, however he was able to manage the condition. Id. In a November 2011 statement, the Veteran reported that when he injures his ankle, it swells up to the size of a softball and bruises, and this happens roughly 2 to 3 times per year. See November 2011 Statement in Support of Claim. In addition, his ankle will catch or lock on occasion which sometimes causes him to fall. Id. He stated that while the brace helped decrease his pain, it caused him to develop a limp and that he has had 5-6 falls since wearing the brace. Id. During a November 2012 orthopedic follow-up appointment, the Veteran reported that overall he was pleased with his brace, it provided him support and decreased his pain, and he did not want to do anything further to manage the condition at that time. See February 2013 VA Medical Records. During an April 2013 VA examination, the Veteran reported feelings of weakness and instability but that the brace worked well and decreased his pain but also limits his motion. The examiner noted the brace works by limiting motion of the joint. The Veteran had normal plantar flexion to 45 degrees, and normal dorsiflexion to 20 degrees, with no additional loss with repetitive use. The examiner noted the Veteran had functional limitation due to pain on movement and excess fatigability. His muscle strength was normal, and there was no evidence of ankylosis. Id. During a January 2017 VA examination, the Veteran reported pain and stated that if he didn't wear his brace that his ankle would roll. The Veteran had plantar flexion to 40 degrees, and dorsiflexion to 20 degrees, with no additional loss of motion with repetitive use. The examiner stated the Veteran did not have any functional loss or limitation of the joint. His muscle strength was normal, and there was no evidence of atrophy, ankylosis or joint instability. Id In a September 2017 brief, the Veteran asserted that his last VA examination in 2013 was inadequate for his current symptomology. In addition, he stated that the examiner did not use any instrument to measure his range of motion (ROM) in degrees. See September 2017 Correspondence. In a January 2019 decision, the Board remanded the case for a new examination to resolve the deficiencies from the earlier examination, and directed the examiner to use a goniometer to measure the Veteran's ROM. During an October 2019 VA examination, the Veteran reported pain and swelling during flares and a sense of instability that requires him to use his brace. The Veteran had plantar flexion to 35 degrees, and dorsiflexion to 15 degrees, with no additional loss of motion with repetitive use or on passive range of motion. There was evidence of pain with weight bearing but no pain with non-weight bearing. His muscle strength was 5/5 for plantar flexion and 4/5 for dorsiflexion, and there was no evidence of ankylosis or joint instability. Id. The examiner opined the right ankle condition had progressed, and that the tendonitis was related to his history of ankle fracture due to weakening of the surrounding ankle tendons over time after his ankle fracture. With the history of ankle fracture, it was likely that he had developed arthritis secondarily over time due to weakening of the joint and its surrounding tendons. Id. In addition, he opined the condition was marked in nature as the Veteran required chronic use of an Arizona brace to avoid falls or tripping due to this instability of the right ankle. Id. The Board finds that, prior to October 14, 2019, the Veteran had plantar flexion of the right ankle to 35 degrees and dorsiflexion of the right ankle to 15 degrees resulting in moderate limitation of motion. The Veteran also reported painful motion of the ankle that limited his motion. The evidence does not indicate that the Veteran's right ankle motion was limited to less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, or that his ankle disability resulted in functional impairment equivalent to marked limitation of motion. Accordingly, a rating in excess of 10 percent for residuals of a right ankle fracture is not warranted prior to October 14, 2019. 38 C.F.R. § 4.71a. From October 14, 2019, however, the Board finds that the Veteran's disability manifested in functional impairment equivalent to marked limitation of motion. In that regard, the October 2019 VA examiner specifically opined that the disability caused a marked level of impairment as a result of the Veteran's pain and instability. Accordingly, a rating of 20 percent, but no higher, is warranted from October 14, 2019. 2. Entitlement to a TDIU. In a November 2011 statement, the Veteran stated that his ankle condition limited his ability to gain employment as a truck driver, thus raising the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). The term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) has two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the adjudicator, not a medical examiner"). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. During the period on appeal, the Veteran in receipt of service connection for anxiety disorder, rated as 30 percent disabling, and residuals of a right ankle fracture, rated at 10 percent disabling, prior to October 14, 2019, and 20 percent disabling thereafter. During this period, the Veteran did not have either 1) one service-connected disability rated at 60 percent or 2) two or more disabilities with at least one disability rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Therefore, the Veteran does not meet the schedular requirements for a TDIU. Id. Entitlement to a TDIU may still be granted on an extraschedular basis under § 4.16(b). This additional subpart of this governing VA regulation indicates 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. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), such as the case here, the Board may not assign a TDIU in the first instance; however, the Board can refer to the Director of Compensation Service for extraschedular consideration any cases where the evidence suggests a veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability but does not meet the schedular requirements. See 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, despite the Veteran not meeting the percentage requirements for a TDIU on a schedular basis, the Board must evaluate whether the Veteran's case should be referred to the Director of Compensation of Compensation Service. After weighing the medical and lay evidence of record, the Board finds that the criteria for referral of the matter of entitlement to a TDIU on an extraschedular basis are not met. See 38 C.F.R. § 4.16(b). There is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities during the period on appeal. The Veteran completed his master's degree in information technology project management in 2009. See May 2011 VA examination, November 2011 Statement in Support of Claim. He was employed as a truck driver prior to completing his education and, in January 2017, reported he had worked as a volunteer firefighter and EMT and was applying to be the emergency management coordinator for his borough. See January 2017 VA examination. Turning to the non-economic aspects of his employability, the Veteran's service-connected disabilities alone, while certainly causing impairment, do not appear to have impacted his functional ability severely enough to preclude all employment. As discussed above, the Veteran was service connected for anxiety disorder rated at 30 percent disabling and residuals of the right ankle fracture rated at 10 or 20 percent disabling. The Veteran asserted that his ankle condition prevented him from walking or standing for prolong periods of time and prohibited him from being able to drive a truck. During an April 2013 VA examination, the Veteran reported that despite obtaining his master's degree in information technology, he had never held a job in that field. He was working as a volunteer firefighter, and an EMT, but mainly drove the fire truck. The examiner opined that due to his right ankle condition he would not be able to walk for prolong periods of time or climb ladders. Id. During a May 2013 VA examination, the examiner opined that the Veteran's problems with work were more based on his medical conditions as opposed to his mental conditions. The Veteran's mental health disorder was responsible for occasional decrease in work efficiency, however the condition was well maintained with his medication. Id. During a May 2015 medical appointment, the Veteran reported he was out of the fire department and currently the plan emergency coordinator of his borough, and then possibly the township. See August 2016 VA Medical Treatment Records. During a January 2017 VA examination, the Veteran reported he was trying to get a non-paying job as an emergency coordinator. The examiner opined the Veteran could not climb ladders or walk for prolonged periods of time, however he could, and had performed, sedentary work functions. Id. During an October 2019 VA examination, the examiner opined the Veteran's ankle condition would affect his ability to work because it would affect his ability to drive a truck and operate the pedals. The examiner did not discuss the Veteran's more recent employment experiences as a firefighter and EMT, or his role as emergency management coordinator. Id. The evidence of record does not support that the Veteran was unable to obtain or maintain substantially gainful employment due to his anxiety disorder and/or right ankle condition. The Veteran's occupational impairment from his right ankle condition manifested in the inability to walk for prolong periods of time or climb ladders, however the Veteran was able to complete sedentary work. See January 2017 VA Examination. The Veteran's impairment from his anxiety disorder manifested in occasional decrease in work efficiency, however the condition was well maintained with his medication. See May 2013 VA examination. The examiner opined that the Veteran's problems with work were more based on his medical conditions as opposed to his mental conditions. Id. As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board takes this to mean the Veteran could work in a job where he primarily sat down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). While the Veteran's has previously held jobs that the current status of his ankle condition could prohibit, by virtue of his work history, skill set, and high level of education, the current severity of the Veteran's the Veteran's current level of service-connected disabilities are compatible with employment in the marketplace. The Board finds there is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disability and therefore extraschedular referral for a TDIU is not warranted. 38 C.F.R. § 4.16(b). As the preponderance of the evidence is against referral of the TDIU claim on an extraschedular basis under § 4.16(b), the benefit of the doubt doctrine is not applicable, and a TDIU must be denied. 38 U.S.C. § 5107(b). M. D. BRUCE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, 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.