Citation Nr: 22012161 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-29 343 DATE: March 2, 2022 ORDER Subject to the laws and regulations governing the award of monetary benefits, for the entire appeal period, entitlement to a 30 percent rating, but no higher, for the service-connected osteoarthritis, residual, status post fracture of the right ankle (right ankle disability) is granted. Subject to the laws and regulations governing the award of monetary benefits, for the applicable appeal period, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's right ankle symptomatology is the functional equivalent of ankylosis in dorsiflexion between 0 and 10 degrees. 2. The Veteran's service-connected disabilities have been of the nature as to prevent him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 30 percent rating for right ankle disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5270. 2. The criteria for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to March 1989. This appeal to the Board of Veteran's Appeals (Board) arose from a December 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In June 2019 and July 2021, the Board remanded this appeal for further evidentiary development. The purpose of the July 2021 remand was to afford the Veteran another examination. However, he cancelled this examination request. See September 2021 Exam Request. When a claimant declines to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. The Veteran submitted an application for TDIU in March 2015 that was denied by the July 2015 rating decision, Although the Veteran did not formally appeal that denial, he expressed still seeking entitlement to a TDIU rating. Therefore, based on this and the evidence of the record, the Board has taken jurisdiction over the TDIU claim in this case, as it is part and parcel of the increased rating claim for right ankle disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased rating for service-connected right ankle disability The Veteran seeks a rating greater than the current evaluation of 10 percent for his service-connected right ankle disability. 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. See 85 Fed. Reg. 230 (Nov. 30, 2020). 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). Thus, 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. In this matter, the pertinent change made to DC 5271 is that moderate (10 percent) and marked (20 percent) limited motion are now specified by degrees. Prior to February 7, 2021, there were no degrees applied to the 10 and 20 percent ratings. According to the new criteria, moderate limitation of motion is depicted by dorsiflexion less than 15 degrees or plantar flexion less than 30 degrees. Marked limitation is depicted by dorsiflexion less than 5 degrees or plantar flexion less than 10 degrees. Turning now to the relevant evidence of the record, on the December 2014 VA Examination, the Veteran reported constant right ankle pain. He wore an ankle brace every day to assist in support. Since his surgery, he has had limited range of motion. He shared that his stiffness was worst in the morning. He was only able to stand for five minutes before having to sit down. He was unable to run. Regarding walking, on a good day, he could walk about a block. On a bad day, he used a cane to go to the bathroom and during flare-ups. Flare-ups lasted two to three days and he experienced them a few times a month. Dorsiflexion was 15 degrees and plantar flexion was 35 degrees. Pain was noted during movement and weightbearing. He had tenderness to the medial side of the ankle. The examiner was unable to say if factors, such as pain or weakness, significantly limit functional ability with repetitive use over time or during flare-ups because those conditions were not observed. Less movement than normal was a contributing factor to his disability. Muscle strength was normal, and no joint instability suspected. At the June 2015 VA Examination, the Veteran reported experiencing chronic pain and occasional swelling of his ankle. He was limited to walking half of a mile and standing for 10 minutes until he felt pain. Dorsiflexion was 10 degrees and plantar flexion was 30 degrees. Pain was noted during range of motion testing. Pain and fatigue significantly limited functional ability with repetitive use over time. Dorsiflexion was estimated to be 5 degrees and plantar flexion was estimated to be 15 degrees. Contributing factors to his disability included less movement than normal, disturbance of locomotion, and interference with standing. No ankylosis was present. Ankle instability or dislocation was suspected. There was no laxity compared with his left ankle. He occasionally used a cane due to his right ankle. On the January 2016 VA Examination, the Veteran reported increased pain and swelling, flare-ups, and painful ambulation. Dorsiflexion was 10 degrees and plantar flexion was 30 degrees. There was pain noted on range of motion and weightbearing. The examiner was unable to say if factors such as pain or weakness significantly limit functional ability after repetitive use testing or during flare-ups. No ankle instability or dislocation suspected. He used a brace occasionally. On a December 2016 Disability Benefits Questionnaire (DBQ), the Veteran reported that flare-ups prevented him from walking or standing for more than 15 minutes. He also stated that he could not flex his ankle joint without experiencing pain or "crunching sounds." He could not physically move the ankle to the degree that he can move his left ankle since his injury. Dorsiflexion was 5 degrees, and plantar flexion was 35 degrees. Contributing factors to his disability included less movement than normal, excess fatigability, pain on movement, swelling, disturbance of locomotion and interference with standing. The examiner noted that ankylosis was present in the right anklein plantar flexion (35 degrees), in dorsiflexion (5 degrees), and in good and poor weightbearing position. On the November 2019 VA Examination, the Veteran again reported constant right ankle pain, which worsened with use. He also experienced swelling. His symptoms interfered with him walking for more than 5 minutes, using stairs, climbing ladders and running. Dorsiflexion was 15 degrees and plantar flexion was 25 degrees. After repetitive use over time, estimated dorsiflexion was 10 degrees and plantar flexion was 15 degrees. It was noted that ankle instability and dislocation was suspected. There was no laxity compared with the other side. Pertaining to DC 5271, the maximum rating allowed is 20 percent for marked limited motion of ankle. In order to accurately evaluate the severity and limitations caused by the Veteran's right ankle disability, the Board has considered whether these symptoms more nearly approximate the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (the ankylosis requirement in 38 C.F.R. § 4.71a can be met with evidence of functional equivalent of ankylosis during a flare). Under DC 5270, a 30 percent rating is warranted for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between zero degrees and 10 degrees. A maximum 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987). An ankylosed joint is more commonly referred to as "frozen." See, e.g., Dorland's Illustrated Medical Dictionary 286 (32d ed.2012). The December 2016 DBQ noted that the Veteran experienced ankylosis in his right ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between zero degrees and 10 degrees. In that report, he also stated that he could not move or flex his ankle joint. The Board acknowledges that the VA examiners noted that there was no ankylosis present for the right ankle. However, the Veteran has constantly endorsed increased stiffness in his ankle, worsening in the morning. Extreme pain has limited dorsiflexion to 5 degrees on examination and after repetitive use over time. He has experienced flare-ups which have resulted in the use of cane. Based on the evidence, the Board finds that his symptoms approximate the functional equivalent of ankylosis. Based on the degrees noted in the December 2016 DBQ, the Board finds that a 30 percent rating is warranted under DC 5270. However, a rating in excess of 30 percent is not warranted under DC 5270, as there is no evidence to suggest ankylosis of the right ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. Concerning other diagnostic codes pertaining to the ankle, the maximum rating under those diagnostic codes is 20 percent. The Board notes that the December 2016 DBQ noted that the Veteran had ankylosis in poor and good weightbearing position, which is contemplated by DC 5272 for ankylosis of subastragalar or tarsal joint. However, impairment of that specific joint has not been identified by the evidence. As stated, he is now receiving a higher rating for ankylosis of the ankle. Furthermore, there is no evidence of malunion of the os calcis or astragalus (DC 5273) or astragalectomy (DC 5274), so separate ratings under those diagnostic codes are not applicable. Regarding the notations of ankle instability and dislocation suspected, the tests showed that there was no laxity noted. Further, the Veteran has not asserted to experiencing symptoms such as buckling or giving way of his right ankle. The cane and brace have been used for his chronic pain. As outlined by the evidence, the majority of the Veteran's limitations are due to his pain and stiffness, which is being compensated by his now 30 percent rating. Therefore, entitlement to a separate rating for instability is not warranted in this matter. Accordingly, the Board concludes that the Veteran is entitled to a 30 percent rating, but no higher, for his service-connected right ankle disability. TDIU The Veteran asserts that his disabilities, to include his right ankle disability, preclude him from maintaining and obtaining substantially gainful employment. After the grant of 30 percent for the right ankle for the entire period on appeal, he now meets the schedular criteria for a TDIU. He is also service connected for a right knee disability (rated as 60 percent disabling from August 1, 2014) and a scar associated with his right ankle disability (evaluated as noncompensably disabling). A total disability rating for compensation purposes 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 as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board will now consider whether he is unable to secure or follow substantially gainful occupation due to his service-connected disabilities, specifically if he is capable of performing the physical and mental acts required by employment. In this regard, the Board notes that, on the March 2015 VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), the Veteran reported that he had worked as a plant operator since 1996. He stated that he would have to retire because of his service-connected disabilities. He completed up to two years of post-high-school education. He received EMT training in 1993. It has been noted in medical records and examinations that the Veteran resigned from his job, in either 2015 or 2016. Accordingly, based on these records, the Board finds that he is currently unemployed. As noted in the examinations, the Veteran experiences significant limitations due to his right knee and right ankle disabilities. The examiners have indicated that he cannot tolerate heavy labor or activities involving prolonged walking, standing, marching or climbing ladders. When the Veteran worked, he missed some days to pain in his ankle. The examiners indicated that he would not be restricted from performing light physical activities. The Board finds that the evidence supports a finding that the Veteran's service-connected disabilities prevent him from securing or maintaining substantially gainful employmentand that his service-connected right knee and right ankle disabilities significantly impact his physical ability to perform tasks, such as lifting, standing, bending, squatting, kneeling, and walking. While the examiners have indicated that the Veteran would not be restricted from light physical labor, his occupational history has been solely in highly physical work. The Board observes here that the standard for evaluating a TDIU claim is not whether a veteran is precluded from all employment. Rather, the appropriate determination for the factfinder (the Board) in these cases is whether, in light of a veteran's occupational and educational history, the service-connected disabilities preclude him or her from securing or maintaining substantially gainful employment. Taken together, the record in the current appeal supports a finding that the Veteran's service-connected disabilities, in combination, render him unable to perform both the physical and mental acts of employment. In other words, the service-connected disabilities preclude him from securing or maintaining a substantially gainful occupation. In summary, and after resolving any reasonable (CONTINUED ON NEXT PAGE) doubt in the Veteran's favor, the Board finds that the criteria for entitlement to a TDIU have been met for the applicable appeal period. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Middleton, Syesa T. 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.