Citation Nr: 21041171 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 19-08 378 DATE: July 8, 2021 ORDER A rating higher than 10 percent prior to August 20, 2020, and higher than 20 percent thereafter for left ankle fracture is denied. Total disability based on individual unemployability is denied. FINDINGS OF FACT 1. Prior to August 20, 2020, the Veteran's left ankle fracture is manifested by no more than moderate limited motion of the ankle. 2. From August 20, 2020, the Veteran's left ankle fracture is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle. 3. The Veteran's service-connected disabilities do not preclude him from obtaining or maintaining substantially gainful employment CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to August 20, 2020, and higher than 20 percent thereafter for left ankle fracture have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5271. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.2, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from June 1963 to June 1966. His service decorations include a Parachutist Badge, Combat Infantryman Badge, Vietnam Service Medal, and National Defense Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded this matter for further development. Left Ankle Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran contends that his left ankle fracture warrants a higher rating. His left ankle fracture is rated 10 percent disabling under DC 5271 for limited motion of the ankle prior to August 20, 2020, when it was increased to 20 percent disabling under DC 5271. After review of the record, the Board finds that the preponderance of the evidence is against assigning a higher rating. The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied. Under the rating criteria in effect prior to February 7, 2021, DC 5271 provides that a 10 percent rating is warranted for moderate limited motion of the ankle, and a 20 percent rating is warranted for marked limited motion of the ankle. The revised rating criteria clarify what is considered moderate and marked limited motion of the ankle. Moderate limited motion is considered less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. Marked limited motion is considered less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. 38 C.F.R. § 4.71a, DC 5271. Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. In April 2015, the Veteran underwent a VA examination for his left ankle. The Veteran reported flare-ups that he described as pain and limitation with duration of standing and walking. The Veteran exhibited 15 degrees of dorsiflexion and 35 degrees of plantar flexion. The examiner found the Veteran to have an additional contributing factor of disability of disturbance of locomotion. No ankylosis was found on examination. The examiner described functional loss in terms of range of motion after repetitive use and during a flare-up but used the exact same measurements from initial range of motion testing. The Board notes that the examiner did not review any of the Veteran's records. Accordingly, the Board finds this examination to be inadequate and affords it little probative weight. After remand, in August 2020, the Veteran underwent another VA examination. The Veteran's current symptoms were described as pain if walking, a lot of twisting, and limited movement trip and fall. He reported that his ankle impacted his ability to work his past job as an independent storm adjuster as he cannot climb ladders or adjust roof damage. The Veteran also reported flare-ups which he described as severe and can last ten minutes. His flare-ups are precipitated by walking, climbing, and standing, and can be relieved by elevating the ankle or taking weight off. On range of motion testing the Veteran exhibited 5 degrees of dorsiflexion and 10 degrees of plantar flexion. The examiner was able to describe functional loss in terms of range of motion after repetitive use and during a flare-up as 5 degrees of dorsiflexion and 5 degrees of plantar flexion. No additional contributing factors of disability were found, and the examiner found no ankylosis. VA treatment records document the extent of the Veteran's left ankle fracture. In June 2015, the Veteran reported on and off pain that he described as sharp and rated and eight to nine out of ten. In October 2015, the Veteran again reported pain in his ankle and stated that the pain comes after standing for a long time. It was observed that his ankle was slightly swollen with limited range of motion. A March 2016 orthopedic consult documents range of motion of the Veteran's left ankle. At this appointment the Veteran exhibited 20 degrees of dorsiflexion and 45 degrees of plantar flexion. Based on the foregoing, the Board finds that a rating higher than 10 percent prior to August 20, 2020, is not warranted. Prior to August 20, 2020, the Veteran exhibited 15 degrees of dorsiflexion and 35 degrees of plantar flexion. As such, has not exhibited limited motion of the ankle that is considered marked. The Board acknowledges the Veteran's lay reports of symptoms and functional loss due to pain and swelling. However, even when considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by his statements would not result in symptoms more nearly approximating marked limited motion of the ankle. Accordingly, the Board does not find that the Veteran exhibited marked limited motion of the left ankle and as such a rating higher than 10 percent prior to August 20, 2020, is not warranted. The Board has considered whether the Veteran is entitled to higher or additional ratings for the service-connected left ankle disability under other DCs pertaining to the ankle. However, those codes, DCs 5270, 5272, 5273, and 5274, are not for application in the present case as the record is absent for evidence of ankylosis of the left ankle, ankylosis of the left subastragalar or tarsal joint, malunion of the left os calcis or astragalus, or left astragalectomy. A rating higher than 20 percent from August 20, 2020, is also not warranted. The Board notes that a 20 percent rating is the highest rating available based on limited motion of the ankle. In order for a higher rating to be awarded, the Veteran would need to have ankylosis of the ankle. However, as explained above, no ankylosis of the ankle was found. As such, the Board cannot award a rating higher than 20 percent for the Veteran's left ankle fracture. In conclusion, the Board finds that the rating criteria for a rating higher than 10 percent prior to August 20, 2020, and higher than 20 percent thereafter for the Veteran's service-connected left ankle fracture have not been met. As the preponderance of the evidence is against the assignment of a higher rating, the benefit of the doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU In a May 2016 statement, the Veteran stated that his left ankle disability interfered with his ability to perform his job cleaning pools or insurance adjusting. In July 2016, the Veteran submitted another statement where he reported that his left ankle prevented him from working his previous jobs in pool maintenance and independent storm adjuster. The Board finds this to raise an issue of entitlement to a TDIU and assumes jurisdiction over the claim. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is 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 period on appeal the Veteran is service connected for prostate cancer, posttraumatic stress disorder (PTSD) with bruxism, left ankle fracture, degenerative disc disease, bilateral hearing loss, tinnitus, and surgical scars of the low back and left ankle. The Veteran's combined rating was 60 percent effective April 3, 2014, and 70 percent effective May 27, 2016. His PTSD is rated at 50 percent disabling. As such, he meets the schedular criteria for a TDIU effective May 27, 2016. The Central inquiry in determining whether a TDIU is warranted 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). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.16, 4.19. Upon review of all evidence of record, the Board finds that the most probative evidence of record demonstrates that the Veteran's service-connected disabilities do not preclude him from maintaining and obtaining substantially gainful employment. The Veteran has undergone multiple VA examinations for his service-connected disabilities throughout the appeal period. In August 2014, the Veteran underwent a VA examination for his PTSD. In occupational history the Veteran reported that after service he worked a variety of jobs with his longest being a commercial fisherman for twenty years, but he did state that he "changed boats a lot." The Veteran also worked as a truck driver, fireman, paper mill worker, and insurance adjuster. His symptoms were found to by anxiety; mild memory loss; chronic sleep impairment; circumstantial, circumlocutory, or stereotyped speech; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or worklike setting. The examiner noted that the Veteran's symptoms negatively impact work performance, but do not preclude ability to work in any capacity. At his April 2015 VA examination for his left ankle fracture, the Veteran reported that his ankle limits the duration he can stand and walk. The examiner found the Veteran's left ankle to create an occupational impairment in that it limits the duration the Veteran can stand and ambulate. In December 2018, the Veteran underwent an examination for his back disability. At this examination the Veteran reported his symptoms as a dull and aching pain, and that when he experiences a flare-up he has to stop moving. He also reported that he cannot bend forward, put his socks on, cut his toenails, has trouble turning, and cannot stand for prolonged periods of time. The examiner found the Veteran's back disability to impact his ability to work as the Veteran now has a hard time climbing ladders and cleaning pools. In August 2020, the Veteran underwent another VA examination for his ankle disability. He again reported limited movement along with tripping and falling. The Veteran stated that his left ankle prevents him from climbing ladders making him unable to perform his old job as an independent storm adjuster. The examiner found the Veteran's ankle to impact the Veteran's ability to perform occupational tasks due to increasing pain after only five minutes of walking or weight bearing. The Veteran also underwent another examination for his back in August 2020. He described the impact of his back condition as an inability to lift heavy objects and pain after standing. The examiner found the Veteran's back disability to create occupational impairment due to pain after ten to fifteen minutes of walking or standing or bending and lifting more than twenty pounds. VA treatment records include insight on the functional impairments of the Veteran's disabilities. In a March 2016 orthopedic surgery consult it is noted that the Veteran has been quite active as a scallop fisherman but has noted increased pain and stiffness in his left ankle. The Veteran has also described his work history and the occupational impact of his disabilities in statements submitted to VA. In a July 2016 letter, the Veteran stated that he cannot work his previous jobs of pool maintenance and independent storm adjuster as his left ankle prevents him from climbing ladders and standing or walking for very long. He also stated that his longest jobs were commercial fishing and independent insurance adjuster as he had the most freedom and good pay. He noted that he was offered a few times to captain a boat but declined because of the responsibility. In a November 2019 statement the Veteran reported that he cannot work, stumbles often, and has taken some falls due to his left ankle disability. The Board concludes that the Veteran's disabilities do not preclude him from obtaining and maintaining substantially gainful employment. Though his disabilities limit the Veteran's ability to stay on his feet for prolonged periods of time, there is no evidence that the Veteran is unable to sit for prolonged periods of time. Furthermore, though the Veteran's PTSD was noted to include a symptom of difficulty in adapting to stressful circumstances and difficulty in maintaining effective work relationships, the Veteran has stated that he did best when working a job that allowed him to maintain independence. This supports a finding that the Veteran is capable of maintaining employment that would require prolonged periods of sitting and allows for little interaction with others and independent work for the Veteran. As such, the Board cannot find that the Veteran's service-connected disabilities interfere with his ability to obtain and maintain substantially gainful employment. The Board recognizes the Veteran's July 2016 that he cannot perform his previous job. However, the standard for TDIU is not whether a veteran can obtain or maintain their previous form of employment, but whether their service-connected disabilities prevent them from obtaining or maintaining substantially gainful employment. As stated above, the Veteran has submitted little evidence that his disabilities prevent him from performing a job that would require prolonged periods of sitting with independent work. Without evidence of interference with standing or ability to work independently, the Board cannot find that the Veteran is precluded from substantially gainful employment. (Continued on the next page) As a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, a TDIU is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.