Citation Nr: 22014149 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-60 465 DATE: March 11, 2022 ORDER Entitlement to service connection for cervical spine degenerative disc disease with intervertebral disc disease (IVDS), (neck disability), to include as secondary to left ankle, bilateral knee, and bilateral hip disabilities, is denied. Entitlement to an initial 50 percent rating, but not higher, for left upper extremity median nerve injury residuals (left upper extremity disability), is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an increased rating higher than 20 percent for left ankle sprain residuals with tendonitis (left ankle disability), to include extraschedular consideration, is denied. Entitlement to an initial 10 percent rating for left ankle instability is granted from September 30, 2013, subject to the laws and regulations controlling the award of monetary benefits. For the period from September 30, 2013 to June 15, 2014, entitlement to a total disability rating due to individual unemployability (TDIU) is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDINGS OF FACT 1. The Veteran's neck disability did not have its onset in service, within a year after discharge from service, and was not caused or aggravated by his service connected left ankle, bilateral knee, or bilateral hip disabilities. 2. The evidence is at least evenly balanced as to whether the Veteran's left upper extremity disability symptomatology more nearly approximates severe incomplete paralysis of the median nerve, but not complete paralysis. 3. The Veteran's left ankle disability symptomatology does not more nearly approximate ankylosis, malunion of the os calcis or astragalus or any astragalectomy, and his left ankle disability symptomatology does not present an exceptional or unusual disability picture where the diagnostic criteria does not reasonably describe or contemplate its severity and symptomatology. 4. The evidence is at least evenly balanced as to whether the Veteran's left ankle instability more nearly approximates malunion with slight ankle disability. 5. The evidence is at least evenly balanced as to whether the Veteran's service connected disabilities preclude him from securing and following a substantially gainful occupation for the period from September 30, 2013 to June 15, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a neck disability, to include as secondary to service connected left ankle, bilateral knee, and bilateral hip disabilities, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for an initial 50 percent rating, but not higher, for left upper extremity disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8515. 3. The criteria for an increased rating higher than 20 percent for service connected left ankle disability, to include extraschedular consideration, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71a, DC 5271. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for a separate initial 10 percent rating for left ankle instability has been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71a, DC 5262. 5. With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU have been met for the period from September 30, 2013 to June 15, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to June 1967 with a period of inactive duty for training (INACDUTRA) in July 1992. The Veteran passed away in November 2020, and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, continued a 20 percent rating for left ankle disability, a May 2014 decision review officer decision which granted service connection for left upper extremity neuralgia, evaluating it as 10 percent disabling, and a November 2014 rating decision which, among one other thing, denied service connection for neck disability. In June 2014, the Veteran filed his notice of disagreement with the rating assigned for his left ankle disability, and his left upper extremity neuralgia, and in January 2015, filed his notice of disagreement with, among one other thing, the denial of service connection for his neck disability. In October 2016, the RO granted a rating increase for the Veteran's left upper extremity neuralgia, evaluating it as 20 percent disabling from June 18, 2014, creating a staged rating. In October 2016 and December 2016, the Veteran was issued statements of the case, and in December 2016 perfected his appeal to the Board. In August 2019, the Board denied a rating higher than 20 percent for left ankle disability, granted a 20 percent rating for left upper extremity neuralgia for the entire period from August 7, 2012, and remanded the service connection claim for neck disability. The Veteran appealed the Board decision to the Court of Appeals for Veteran's Claims (Court) which in October 2020 granted a Joint Motion for Partial Remand (JMPR) filed by the parties, vacating, and remanding part of the Board's August 2019 decision, finding that the Board failed to provide an adequate statement of reasons and bases. Specifically, the parties agreed that the Board failed to discuss favorable evidence of record regarding left ankle instability, extraschedular consideration, different severities of the left upper extremity neuralgia, and TDIU prior to June 15, 2014, as part and parcel of the increased rating claim for the left ankle disability. In February 2021, the RO denied service connection for neck disability, notifying the Veteran in a supplemental statement of the case. In March 2021, the Board dismissed the claims for a higher rating for left ankle disability, and left upper extremity neuralgia due to the death of the Veteran. In August 2021, the Board vacated its March 2021 decision, finding that the appellant had been granted substitution in February 2021, prior to the March 2021 Board dismissal, and remanded the claims for service connection for neck disability, a rating higher than 20 percent for both left upper extremity disability, and left ankle disability, and for a TDIU. In November 2021, in compliance with the JMPR, the Director of Compensation Services issued an Advisory Opinion, finding no unusual or exceptional disability pattern that would render application of the regular rating criteria impractical, and opining that a higher evaluation on an extra-schedular basis was not warranted for the Veteran's left ankle disability based on the medical evidence of record. In November 2021, the RO denied a higher rating for left upper extremity disability, left ankle disability, service connection for a neck disability, and a TDIU, notifying the Veteran in a supplemental statement of the case. For the reasons indicated in the discussion below, the opinions that the Board instructed the agency of original jurisdiction (AOJ) to obtain were in fact obtained and are adequate to decide the claims on appeal. Thus, the AOJ complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including osteoarthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Service connection is also warranted for disability proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (b). Neck Disability The Veteran's service treatment records do not reflect treatment for, or complaints of a neck disability, or neck disability symptomatology, and his May 1967 medical examination report and medical history report upon separation do not indicate that the Veteran suffered from a neck disability, or neck disability symptomatology. The Veteran's DD-214 reflects that his military occupational specialty was as an infantry fire crewman. A July 1992 Statement of Medical Examination and Duty Status reflects that the Veteran was treated for a bruised neck. In a February 1993 periodic post service medical history report, the Veteran reported falling out of a two and a half ton trailer with tools and supplies, injuring his neck and back. February 2009 post service treatment records reflect that the Veteran had no neck pain or stiffness. In a June 2014 letter, the Veteran reported constant neck pain, preventing him from turning it much at all. He stated that his physical therapist said his neck pain would flare-up again because the arthritis from his knees, ankle, and back has spread to his neck. The Veteran is competent to relate what was told to him by a medical professional regarding a nexus. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). A November 2014 VA examination report reflects diagnoses of degenerative arthritis and IVDS, with the Veteran reporting daily neck pain for about 2 to 3 years. The examining nurse practitioner (NP) opined that the Veteran's neck disability is less likely than not (less than a 50 percent probability) due to, or the result of his service connected disabilities, stating that his neck condition is not affected by his lower extremity joints at the ankle or knees. The NP noted that the neck is at the most proximal aspect of the axial skeleton, and the Veteran's sacral lumbar spine only shows minimal changes consistent with normal wear for a 68 year old. The NP also reported that progression of the disability from the lower extremity joint to the neck would not skip the pelvic/lumbar/thoracic axial skeleton. In a January 2015 letter, the Veteran reported that he hurt his neck in 1992 while in service, and that his neck has given him trouble his entire life. He stated that he has a lot of arthritis in his neck due to his accident and the arthritis in his other joints. In an October 2016 VA examination report, the Veteran stated that he continues to have pain in his neck with flexion, extension, and overhead reaching. The physician's assistant (PA) opined that the Veteran's neck disability was less likely than not (less than a 50 percent probability) incurred in or caused by an in-service injury, event, or illness, noting that the Veteran's service treatment records do not document anything other than a bruise to his neck in 1992, and there is no interval history until 2014 with VA. The PA explained that while imaging shows degenerative disc disease and degenerative joint disease, there is no way to ascribe these findings with the Veteran's history. A February 2021 disability benefits questionnaire (DBQ) reflects that the PA opined that the Veteran's neck disability was less likely than not (less than a 50 percent probability) incurred in or caused by an in-service injury, event, or illness. She stated that the Veteran had documentation of a neck bruise from 1992 during active duty service with no other documentation of neck pain until 2015. She noted that there is no evidence of chronicity, therefore a nexus cannot be established between the current neck disability and the single acute neck injury in 1992. While the PA stated that the Veteran has documentation of cervical degenerative joint disease and disc disease dating back to 1992 status post injury during service, she opined that the Veteran's neck disability is less likely than not (less than a 50 percent probability) due to, or the result of a service connected disability, noting that there is no pathophysiological or structural correlation or causative etiology between the development of cervical degenerative joint disease and disc disease with arthritis of the ankles, knees, and hips with left upper extremity median neuropathy. The PA noted that she was unable to determine a baseline level of severity of the neck disability based upon medical evidence available prior to aggravation, or the earliest medical evidence following aggravation by a service connected disability. She stated that the medical evidence is not sufficient to support a determination of a baseline level of severity. She opined that the Veteran's neck disability was not at least as likely as not (at least a 50 percent probability) aggravated beyond its natural progression by a service connected disability, stating that the Veteran developed cervical degenerative joint disease and disc disease status post neck injury, and that there is no pathophysiological or anatomical correlation between the cervical spine and the bilateral ankles, knees, hips, and a left median nerve disability. The PA stated that these conditions would not aggravate any type of cervical spine disease as there is physically no clinical or physiological relationship between the diagnoses. A November 2021 DBQ reflects that the examining physician reported that there is no clear evidence from the review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in a length discrepancy of more than 5 cm so that the individuals gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. He explained that it is not unusual for two joints to share properties in the same person, but one joint's disease does not "spread" to another, or cause damage to it. He concluded that the Veteran's neck disability is due to something intrinsic to the cervical spine, and not the bilateral ankles, knees, hips, or left upper extremity. The physician thus opined that the Veteran's neck disability was not at least as likely as not (at least a 50 percent probability) caused or aggravated by his service connected disabilities. The evidence of record thus reflects that the Veteran's neck disability did not have its onset in service or within a year from discharge, was not caused or aggravated by a service connected disability, and is not otherwise related to service. While the February 2021 PA indicated that the Veteran has documentation of cervical degenerative joint disease dating back to 1992 during service, this is most likely a mistake on the part of the PA as she had previously detailed how the Veteran had an acute bruise from 1992, and no other neck pain until 2015. The evidence of record does not suggest that the Veteran suffered from degenerative joint disease during service or within a year from service, as the bruise from 1992 was determined to be acute as noted, therefore, service connection on a presumptive basis as a chronic disease is not warranted. The October 2016 PA and February 2021 PA both opined that the Veteran's neck disability was less likely than not (less than a 50 percent probability) due to service, with the February 2021 PA noting no chronicity since the acute bruise in 1992. The Veteran has not otherwise suggested, and the evidence of record does not indicate, that he has suffered from symptomatology associated with a neck disability since service. The October 2016 and February 2021 PAs provided a thorough rationale to support their opinions based on an accurate characterization of the evidence and after providing the Veteran with an examination, thus their opinions as to direct service connection is afforded significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There are no contrary medical opinions of record. Additionally, the November 2021 physician provided a thorough rationale to support his opinion that the Veteran's neck disability was not caused or aggravated by his service connected left ankle, hip, or knee disabilities based on an accurate characterization of the evidence of record, thus his opinion as to secondary service connection is afforded significant probative weight. Nieves-Rodriguez, 22 Vet. App. at 304. While the Veteran competently and credibly reported that his physical therapist informed him that his neck disability was caused by arthritis which has spread from his service connected disabilities, the Board finds that this opinion is outweighed by the November 2021 physician's opinion as the physical therapist failed to provide a rationale to support his opinion. The Board acknowledges the Veteran's contention that he suffers from a neck disability which is due to service, or a service connected disability. However, while the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to render a diagnosis or render a medical opinion on this matter. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case is outside the realm of common knowledge of a lay person because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau, 492 F.3d at 1377. Thus, the Veteran's statements in this regard are not competent and are afforded no probative weight. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a neck disability is warranted. Rather, the evidence persuasively weighs against service connection for a neck disability, to include as secondary to a service connected disability. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). RATINGS Disability ratings are determined by applying the criteria set forth in the 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider 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. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. When evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 28-29 (2021). Left Upper Extremity Disability Disability from neurological conditions is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, atrophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The Veteran's left upper extremity disability is currently rated 20 percent disabling under DC 8515, applicable to diseases of the peripheral nerves. Under DC 8515, a 10 percent rating is warranted for mild incomplete paralysis of the median nerve, a 30 percent rating is warranted for moderate incomplete paralysis of the major side and 20 percent of the minor side, a 50 percent rating is warranted for severe incomplete paralysis of the major side and 40 percent of the minor side, and a 70 percent rating is warranted for complete paralysis of the major side and 60 percent of the minor side. 38 C.F.R. § 4.124a, DC 8515. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Rather than applying a mechanical formula, the Board must instead evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, DC 8510-8730. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. See 38 C.F.R. § 4.124a, note at "Diseases of the Peripheral Nerves." VA has generally considered that the mild level of evaluation would be more reasonably assigned when sensory symptoms are recurrent but not continuously assigned a lower medical grade reflecting less impairment and/or affecting a smaller area in the nerve distribution. The moderate level of evaluation would be reserved for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are continuously assigned a higher medical grade reflecting greater impairment and/or affecting a larger area in the nerve distribution. This provision does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength. An April 2014 VA examination report indicates that the Veteran is right hand dominant, and reported pain and numbness that comes and goes in his left arm every day, lasting about 30 minutes at least a couple of times a day. The examiner noted no constant pain, but severe intermittent pain, paresthesias and/or dysesthesias, and numbness in the left upper extremity. The Veteran had no muscle atrophy, but there was decreased sensation for light touch in the left hand/fingers. The examiner noted mild incomplete paralysis of the median nerve. A March 2015 VA examination report reflects that the Veteran reported an increase in his pain since April 2014. His dominant hand is noted as his right hand, and the examiner reported mild constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the left upper extremity. There was some reduction in muscle strength in the left upper extremity, but no muscle atrophy. The Veteran's Phalen's and Tinel's sign tests were positive on the left upper extremity, with the examiner noting moderate incomplete paralysis of the left median nerve. The examiner reported that the Veteran indicates that his left wrist pain directly impacts his daily activities, and ability to work. In a May 2017 VA examination report, the examining PA noted that the Veteran's left hand was his dominant hand, and the Veteran reported flare-ups as pain in his thumb and forearm. The Veteran indicated that he did not have any functional loss or impairment, but his left hand range of motion was abnormal with range of motion as follows: Index, long, ring, and little finger maximum metacarpophalangeal (MCP), proximal interphalangeal (PIP), and distal interphalangeal joint (DIP) extension to 0; and MCP flexion to 90 degrees, PIP flexion to 100 degrees, and DIP flexion to 70 degrees. Thumb maximum MCP and IP extension were to 0 degrees, with MCP flexion to 100 degrees, and IP flexion to 80 degrees. There was no gap between the pad of the thumb and fingers, and no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. No pain was noted upon examination, nor was there additional functional loss or range of motion with three repetitions. The PA noted that the examination was not conducted during a flare-up, but indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. A reduction in muscle strength was noted, but there was no muscle atrophy, and no ankylosis in the left hand. The Veteran did not require use of an assistive device, and the PA indicated that the Veteran's left upper extremity disability did not impact his ability to work. The Board notes that the aforementioned examination reports reflect both the Veteran's left hand and right hand as his dominant hand. The Board will resolve any such discrepancy in the light most favorable to the Veteran considering the pro-claimant nature of Veterans law, and thus will consider the Veteran's left hand to be his dominant hand. The previously discussed examination reports reflect that the Veteran has consistently reported flare-ups of pain and numbness in the left upper extremity, and the examiners also noted decreased muscle strength and sensation to light touch. While the April 2014 examiner noted mild incomplete paralysis, and the March 2015 examiner noted moderate incomplete paralysis, the Veteran reported intermittent pain, paresthesias/dysesthesias, and numbness which he characterized as severe during his April 2014 examination, and expressed to his March 2015 examiner that the symptomatology had worsened. Therefore, the evidence is at least evenly balanced as to whether the Veteran's left upper extremity disability more nearly approximates severe incomplete paralysis of the median nerve of the major side as contemplated by a 50 percent disability rating. However, a disability rating higher than 50 percent for the left upper extremity disability is not warranted. During the period on appeal, the Veteran's left upper extremity disability has not more nearly approximated complete paralysis of the minor side. While the Veteran has reported severe intermittent pain, paresthesias and/or dysesthesias, and numbness, the evidence of record does not indicate that the Veteran has complete paralysis. In fact, the examiners have noted at most moderate incomplete paralysis of the left median nerve. Additionally, the Veteran's left upper extremity disability has not required that he use an assistive device. While an examiner's characterization of the level of disability is not binding with the Board, here it is consistent with the above evidence to the extent that it indicates that the Veteran's left upper extremity disability symptomatology does not more nearly approximate complete paralysis as opposed to severe incomplete paralysis. There is no additional evidence that the Veteran suffered complete paralysis of any nerve group at any time throughout the appeal period. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board" (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). The terms mild, moderate, and severe in the rating criteria are broad enough to encompass all the Veteran's symptoms. Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018) (Given the broad nature of the criteria for rating neurological disorders, finding symptoms not contemplated by these criteria "presents quite a challenge"). Therefore, remand for referral for extraschedular consideration is not warranted. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 50 percent rating, but not higher, for left upper extremity disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Left Ankle Disability The Veteran's left ankle disability is currently rated 20 percent disabling under 5024-5271, the maximum schedular evaluation assignable for the Veteran's left ankle disability under DC 5271. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. 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 Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 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. As noted, the Veteran passed away in November 2020. Therefore, the Board will only consider the Veteran's claim under the former criteria prior to February 7, 2021. Prior to the regulatory change, under DC 5271, ankle disability with moderate limitation of motion warrants a 10 percent rating. A 20 percent rating is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. Standard range of ankle dorsiflexion is from 0 to 20 degrees, and plantar flexion from zero to 45 degrees. See 38 C.F.R. § 4.71, Plate II. In addition to a higher rating for left ankle disability, the parties to the JMPR contend that the Veteran's left ankle disability warrants extraschedular rating consideration under 38 C.F.R. § 3.321 (b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Director of Compensation Service. 38 C.F.R. § 3.321 (b)(1). In a September 2008 VA examination report, the examining PA noted that the Veteran's left ankle pain has progressed since its onset during service, with the Veteran reporting pain and "giving way" episodes causing reduced mobility. The Veteran reported no use of assistive aids for walking, but indicated that he is able to walk more than 14 a mile, but less than a mile, and stand for 15 to 30 minutes. The PA noted giving way of the left ankle, pain, and weakness, normal gait, and dorsiflexion to 18 degrees, including in passive range of motion, and to 15 degrees with repetitive use. Plantar flexion was to 38 degrees, with passive range of motion to 40 degrees, and to 34 degrees with repetitive use. The examination report reflected left ankle crepitus, but no tendon abnormality, instability, or angulation. An October 2010 VA examination report also reflects that the Veteran reported that his left ankle "gives way", and indicates that the Veteran suffers from stiffness, pain, weakness, decreased speed of joint motion, and flare-ups, with the examining NP noting that the disability is moderate to severe. The NP also noted that flare-ups are precipitated by prolonged standing, walking, and stair climbing. Tenderness and crepitus were noted, with left dorsiflexion to 18 degrees, plantar flexion to 3 degrees, and evidence of pain with active motion. Left dorsiflexion was to 15 degrees after repetitive motion, and no joint ankylosis was noted. An April 2012 VA examination report indicates that the Veteran suffers from flare-ups of the left ankle which the Veteran described as moderate, and which occurred when he walked at most 14 mile. He also reported swelling on occasion. Plantar flexion was to 30 degrees, dorsiflexion to 10 degrees, with no additional limitation with repetitive use testing. Muscle strength was normal, as was joint stability testing, and the examination report reflects no ankylosis of the ankle, subtalar, or tarsal joint. The Veteran had suffered from achilles tenonitis, but had not had a total ankle joint replacement. The Veteran reported recurrent tendonitis due to ankle surgery, but did not report use of any assistive devices. A January 2014 VA examination report indicates that the Veteran reported that his left ankle has become more painful over the past year with occasional swelling. He noticed trouble standing for more than 4 hours, but denied flare-ups. Flexion was noted to 25 degrees with pain at 10 degrees, and plantar dorsiflexion was to 15 degrees with pain at 10 degrees. There was no additional limitation in range of motion with repetitive use testing, but the examining NP noted less movement than normal, excess fatigability, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing on the left ankle. Joint stability testing was normal, and there was no ankylosis. The Veteran had not had "shin splints", stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus or talus, and had not had a talectomy. There were no residual signs or symptoms due to ankle surgery, and the Veteran did not report use of an assistive device. The NP reported that the Veteran's ankle condition impacted his ability to work as it limits his ability to stand for 4 hours or more, noting that the Veteran recently discontinued part-time employment due to his left ankle disability. In his June 2014 letter, the Veteran reported that he has had flare-ups all winter, and that the previous examiner's reports that he did not have flare-ups was a misunderstanding. He also stated that he falls down sometimes due to his left ankle giving way. An April 2015 VA examination report indicates that the Veteran suffers flare-ups of the ankle with walking and using stairs. Dorsiflexion was to 10 degrees, and plantar flexion to 30 degrees. Pain was noted with dorsiflexion and plantar flexion, there was pain with weight bearing, and evidence of crepitus, but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. No additional loss of function or range of motion was noted with three repetitions, and while pain, fatigue, weakness, and lack of endurance limited functional ability with flare-ups and repeated use, there was no change in terms of range of motion. There was some reduction in muscle strength, but no muscle atrophy, and no ankle instability noted. The examining PA reported that the Veteran had not had "shin splints", stress fractures, achilles tenontitis, achilles tendon rupture, malunion of the calcaneus or talus, or a talectomy. The Veteran reported constant use of a cane, and the examiner noted that the Veteran's left ankle disability impacted his ability to work as it limits his ability to walk any distance. The PA stated that the Veteran could not engage in any strenuous, physically demanding employment, but could look for sedentary, indoor type of employment. As previously discussed, in a November 2021 Advisory Opinion, the Director of Compensation Services found no unusual or exceptional disability pattern that would render application of the regular rating criteria impractical, and opined that a higher evaluation on an extra-schedular basis was not warranted for the Veteran's left ankle disability based on the medical evidence of record. The Board reviews the entirety of the Director's decision, which is not evidence, de novo and is thus authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 458 (2015). Because the nature of extraschedular consideration requires that the disability picture be unique and not contemplated by the rating schedule, there logically is no guidance as to the specific rating that should be assigned in any particular case. Id. at 447, 454, n. 7 (2015). For the following reasons, the Board finds that an extraschedular rating for the Veteran's left ankle disability is not warranted. While the Veteran has competently and credibly reported pain, swelling, and instability in his left ankle, with the April 2015 examiner indicating that the Veteran would not be able to engage in physically demanding employment due to his left ankle disability, the Veteran does not contend, and the evidence of record does not otherwise reflect, that the left ankle disability symptomatology presents an exceptional or unusual disability picture where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of his service connected disability. While the Veteran reported that his left ankle disability impacted his ability to work as it limited his ability to walk any distance due to the pain, his pain due is specifically contemplated by the rating criteria applicable to ratings for all orthopedic disabilities. 38 C.F.R. §§ 4.40, 4.45, 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that § 4.59 applies to "joint pain in general" and is not limited to joint pain due to arthritis). Additionally, the Board notes that in Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), superseded in part by regulation, 82 Fed. Reg. 57230 (Dec. 8, 2017), the Federal Circuit indicated that the TDIU provision only accounts for instances in which a veteran's combined disabilities establish total unemployability, i.e., a disability rating of 100 percent. Id. at 1366. On the other hand, 38 C.F.R. § 3.321(b)(1) performs a "gap-filling" function. Id. It accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the impact of a veteran's disabilities is nonetheless inadequately represented. Id. As will be discussed further, the Veteran has been granted TDIU for the period from the claim of entitlement to an increased rating for left ankle disability, and is deemed to have total unemployability, thus there is no "gap" to fill by § 3.321(b). Further discussion of an extraschedular rating is therefore not warranted. As previously noted, the Veteran is in receipt of the highest available schedular rating under DC 5271. However, the Board has also considered other potentially relevant diagnostic codes. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). To this end, the evidence of record does not reflect left ankle ankylosis, as the absence of ankylosis was specifically noted during the October 2010, April 2012, and January 2014 examinations. Additionally, while the examinations were not administered during a flare-up, there is no indication in the VA examination reports, and the Veteran did not otherwise contend, that his left ankle disability symptomatology more nearly approximated ankylosis of the left ankle, including during a flare-up. In fact, the April 2015 examination report indicates that the Veteran had no additional loss of range of motion with flare-ups and repeated use. Also, there is no evidence of any malunion of the os calcis or astragalus or any astragalectomy, thus, separate and/or higher ratings are not warranted on the basis of any such impairments at any time during the claim period. See 38 C.F.R. § 4.71a, DCs 5270, 5272-5274. However, as noted in the JMPR, a separate rating under 5262 has been considered as it contemplates ankle disability. DC 5262 provides a 10 percent rating for malunion with slight knee or ankle disability; a 20 percent rating for malunion with moderate knee or ankle disability; a 30 percent rating for malunion with marked knee or ankle disability; and a 40 percent rating for nonunion of the tibia and fibula with loose motion and requiring a brace. Malunion is "union of the fragments of a fractured bone in a faulty position." Dorland's Illustrated Medical Dictionary 1115 (31st ed. 2007). Nonunion is the "failure of the ends of a fractured bone to unite." Id. at 1309. Disability from malunion of the tibia shaft is produced mainly by rotational deformity, lateral and posterior bowing, and usually some degree of shortening. See Canale & Beaty, Campbell's Operative Orthopaedics 2931 (12th ed. 2012). The Board finds that a separate 10 percent rating for malunion with slight ankle disability is warranted. While the April 2015 VA examination report reflects no malunion of the calcaneus or talus, or a talectomy, the Veteran did report constant use of a cane, and while joint stability testing was normal over the course of several examinations, the Veteran has consistently maintained that he falls down sometimes due to his left ankle "giving way". The Veteran also reported "occasional" swelling of his left ankle. However, as the Veteran has reported only occasional swelling, and "sometimes" falling down due to his left ankle disability, with joint instability tests consistently normal, his left ankle disability does not more nearly approximate marked ankle disability, contemplated by a 30 percent rating. Therefore, his left ankle disability symptomatology more nearly approximates malunion with slight ankle disability as contemplated by a separate 10 percent rating under DC 5262, with "slight" defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2, (last visited Oct. 16, 2021). The evidence thus reflects that the Veteran has failed to show that his left ankle disability picture presents an exceptional or unusual disability picture where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of his service connected disability; or that his left ankle disability symptomatology more nearly approximates ankylosis, malunion of the os calcis or astragalus or any astragalectomy. Accordingly, entitlement to an increased rating higher than 20 percent for left ankle disability, to include consideration of an extraschedular rating, is not warranted. However, the evidence is at least evenly balanced as to whether the Veteran's left ankle disability more nearly approximates malunion with slight ankle disability. Therefore, a separate 10 percent rating under DC 5262 is warranted from September 30, 2013, the date of the claim for an increased rating for left ankle disability. TDIU prior to June 15, 2014 The issue of entitlement to a TDIU is a potential part of any rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As previously noted, the JMPR indicates that the issue of TDIU prior to June 15, 2014 should have been considered as part and parcel of the claim for an increased rating for left ankle disability. Therefore, in accordance with the JMPR, the Board will adjudicate the issue of entitlement to a TDIU as part and parcel of the claim for an increased rating for a left ankle disability, filed September 30, 2013. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having 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 following: 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. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. "A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment." Id. The ultimate question, however, is "whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." Id. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. In light of this decision, the Veteran is service connected for left ankle disability, rated 20 percent disabling from March 9, 2012; depressive disorder, rated 50 percent disabling from June 5, 2014; left upper extremity disability, rated 50 percent disabling from August 7, 2012; tinnitus, rated 10 percent disabling from September 3, 2010; left knee disability, rated 10 percent disabling from March 9, 2012; right knee disability, rated 10 percent disabling from September 30, 2013; right hip disability, rated 10 percent disabling from February 21, 2014; left hip disability, rated 10 percent disabling from November 25, 2014; bilateral hearing loss, rated noncompensable from September 3, 2010; left hip limitation of flexion and limitation of abduction, both rated noncompensable from November 25, 2014; right hip limitation of flexion and abduction impairment, each rated noncompensable from February 13, 2015; and left upper extremity scar, rated noncompensable from March 2, 2015. The Veteran thus has a combined rating of at least 70 percent from the September 30, 2013 date of the claim for an increased rating for left ankle disability, with one disability rated at least 40 percent disabling. Therefore, he meets the criteria for the assignment of a TDIU on a schedular basis from that date. See 38 C.F.R. § 4.16 (a)(2). Nonetheless, to grant TDIU it must be found that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Veteran's 21-8940 indicates that he last worked full-time in June 2004, and became too disabled to work in January 2015. It also reflects that he completed 2 years of college, and reported that his left ankle and foot swell and hurt too badly to work, as he cannot stand, walk, or climb ladders. He indicated that his service connected depression, left ankle, knees, and hips prevent him from working, and that he last worked part time as a merchandise associate. In this regard, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). The January 2014 NP reported that the Veteran's ankle condition impacted his ability to work as it limits his ability to stand for 4 hours or more, noting that the Veteran recently discontinued part-time employment due to his left ankle disability. The January 2014 NP also indicated that the Veteran's left knee has become increasingly painful over the last year, and limits the Veteran's ability to stand for 4 hours or more. She also remarked that the Veteran's left knee, left ankle, and right knee disabilities in combination limit the Veteran's ability to work. In a February 2015 letter, the Veteran stated that he retired from his job with the Army Corps of Engineers in July 2004, but tried to work part time with Home Depot in April of 2013, working 24 hours a week with his highest gross earnings in a month being $640.00. However, he reported that his arthritis and depression has worsened to the point that he is losing his job. He also reported that his left ankle and feet are bothering to the point that he is going to have to quit because he is not able to stand and work all day. Based on the foregoing, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's service connected disabilities preclude him from securing and following substantially gainful employment for which the Veteran would otherwise be qualified for the period from September 30, 2013, the date the Veteran filed his claim for an increased rating for a left ankle disability, to June 15, 2014. The Veteran's work history has involved working most recently in sales, but his depression and left ankle disability symptoms preclude him from adequately performing his duties as he is unable to stand or walk for any prolonged period of time, and his depression prevents him from interacting with customers in a professional manner conducive to achieving his goals and quotas as a sales associate. While the Veteran has provided evidence that he has worked at Home Depot since April 2013, the evidence reflects that he worked on a part-time basis, about 24 hours a week, and made at most $640.00 a month. Therefore, as the Veteran would have made at most $7,680.00 per year, falling short of the $11,670 poverty threshold for one person in 2014, see https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines/prior-hhs-poverty-guidelines-federal-register-references, the Veteran's employment for the period from September 30, 2013 to June 15, 2014, is considered marginal. (Continued on the next page) The evidence is thus at least evenly balanced as to whether the Veteran's service connected disabilities render him unable to secure or follow substantially gainful employment. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to TDIU is warranted for the period from September 30, 2013 to June 15, 2014. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.