Citation Nr: 22041387 Decision Date: 07/19/22 Archive Date: 07/19/22 DOCKET NO. 15-23 710 DATE: July 19, 2022 ORDER An initial rating of more than 10 percent since October 14, 2010, for left sided peroneal tendon subluxation, status-post left ankle sprain, is denied. An initial rating of 20 percent since June 1, 2013, for surgically corrected right tibia and fibula fracture is granted. FINDINGS OF FACT 1. Since October 14, 2010, the Veteran had moderate limitation of motion of the left ankle. 2. Since June 1, 2013, the Veteran had marked limitation of motion of the right ankle. CONCLUSIONS OF LAW 1. The criteria for an initial rating of more than 10 percent, since October 14, 2010, for left sided peroneal tendon subluxation, status-post left ankle sprain, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. The criteria for an initial rating of 20 percent since June 1, 2013, for surgically corrected right tibia and fibula fracture have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Air Force from January 2008 to July 2009. The Veteran was scheduled for an October 2018 videoconference hearing, but the record reflects that he did not appear for the hearing and, thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). In November 2018, the Board remanded this appeal for new VA examinations. The RO made many attempts to contact the Veteran to schedule the examinations. The record contains July 2021 and January 2022 Reports of General Information where they tried to reach him via telephone and contains letters sent in July 2021, November 2021, and March 2022 asking the Veteran to please contact VA to schedule his examinations. The RO called the Veteran at the telephone number of record, which was his grandparents' number. His grandparents provided his mother's telephone number, and she provided the Veteran's telephone number. VA was unable to contact the Veteran at any of these telephone numbers and he did not respond to any messages. He also did not respond to the letters that VA sent, and they were not returned as undeliverable. In January 2019, the Veteran informed VA of a permanent address change and the letters were sent to that address. He has not informed VA of another address change, and no subsequent mail, including the May 2022 supplemental statement of the case (SSOC), a July 2022 letter from the RO informing the Veteran that his appeal had been returned to the Board, and a July 2022 Board docketing letting, has been returned as undeliverable. The Board finds that the VA has complied with its duties to assist the Veteran in providing the examinations requested in the November 2018 Board remand, and that any additional attempts to schedule the Veteran for the examinations would be futile. The duty to assist is a two way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board assumes that the letters sent to the Veteran requesting that he contact VA to schedule an examination were received by the Veteran because they were not returned and there is no indication of an address change since they were sent. The Board assumes that the Veteran does not wish to have an examination and, therefore, will proceed to adjudicate the appeal on the record. 1. Entitlement to an initial rating of more than 10 percent since October 14, 2010, for left sided peroneal tendon subluxation, status-post left ankle sprain. 2. Entitlement to an initial rating of more than 10 percent since June 1, 2013, for surgically corrected right tibia and fibula fracture. Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's disabilities are rated according to diagnostic code 5271, for limitation of motion of the ankle. Moderate limitation of motion of the ankle warrants a 10 percent rating and marked limitation of motion of the ankle warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The average normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic code 5271 was changed in February 2021 to define the terms "moderate limitation of motion" and "marked limitation of motion." The Board finds that the rating criteria in effect prior to February 2021 were more favorable to the Veteran because they were less restrictive and, therefore, easier to obtain a higher rating. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In an October 2010 statement, the Veteran reported that he had left ankle weakness and pain, with snapping and popping. In November 2010, he was afforded a VA examination. He reported left ankle pain, occasional sprains, and catching and locking. He wore high boots to protect his ankle because he felt unsteady in low shoes. Hunting or running increased the severity of his ankle symptoms. Pain was a 4 out of 10 generally and an 8 or 9 out of 10 during a flare-up. Flare-ups occurred approximately one time per week. He reported increased pain in his right ankle with popping. He did not wear a brace or use any assistive devices for locomotion. He could walk approximately 200 feet before ankle pain required that he rest. On examination, he had left ankle dorsiflexion to 30 degrees with pain, plantarflexion to 50 degrees without pain, inversion to 60 degrees with pain, and eversion to 40 degrees with pain. He had full muscle strength. The examiner noted that the peroneal tendons sublux slightly over the lateral aspect of the lateral malleolus and then go back into place with inversion, which was mildly uncomfortable. Palpation along the peroneal groove was also mildly uncomfortable. His gait was normal, and he had no abnormal shoe wear. X-ray studies did not show arthritis, fractures, signs of old fractures, significant osteochondral defects, or other abnormalities. In a March 2013 statement, the Veteran reported twisting his right ankle and falling, causing severe pain to both ankles. He had broken his right ankle and his tibia and fibula. He had swelling in the left ankle. He underwent surgery for the right-side injuries. In May 2013, he was afforded another VA examination. He had left ankle popping, locking, and catching consistent with peroneal tendon subluxation. He had daily pain at 7 out of 10. He had no ankle instability. He had increased pain with walking more than one mile or with running. Stretching and rest improved his symptoms. He did not take pain medication. On examination, he had right ankle plantar flexion to 35 degrees with pain and dorsiflexion to 10 degrees with pain; he had left ankle plantar flexion to 45 degrees or greater without pain and dorsiflexion to 20 degrees or greater with pain. He had no additional loss of range of motion following repeated use testing. He had functional loss resulting in less movement than normal of the right ankle, pain on movement in both ankles, swelling in the right ankle, disturbance of locomotion in both ankles, and interference with sitting, standing, and weight-bearing in the left ankle. He had localized tenderness in both ankles. Muscle strength testing was normal and there was no laxity or ankylosis in either ankle. Beyond his right ankle surgery, he had no other symptoms. On the right side, he had limited subtalar and ankle range of motion, ankle tenderness and pain with resisted inversion, and pain with passive maximum plantar flexion. He occasionally used a walking boot on the right side. The examiner stated that his ankle disorders did not impact his ability to work. The examiner stated that he could not determine whether the Veteran had additional functional loss or range of motion during flare-ups or following repeated use over time. This portion of the examination is inadequate. Sharp v. Shulkin, 29 Vet. App. 26 (2017). On his October 2013 notice of disagreement (NOD), the Veteran reported ongoing pain in his right ankle. He stated that he had 22 screws and 2 plates in his right ankle and leg. Given these facts, the Board finds that the Veteran's right ankle symptoms most closely approximate a 20 percent rating for marked limitation of motion throughout the period on appeal. The current 10 percent rating adequately reflects the Veteran's left ankle limitation of motion and functional impairment during the relevant period. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making these determinations, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2018); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). The 20 percent rating is the highest schedular rating available for the ankle disabilities. A 20 percent rating is not warranted for the left ankle as he consistently had normal, or near normal, range of motion in that ankle. The Board has considered the issue of a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). The May 2013 VA examination stated that the Veteran was not working at that time. He had previously worked in a warehouse but had not yet been cleared by physical therapy to return to working after his right ankle surgery. There is no indication that, after his period of convalescence, during which time he had a temporary total rating and which ended on May 31, 2013, that he was unable to return to work. The May 2013 examiner stated that his ankle disorders did not impact his ability to work. There is no evidence after that examination report that the Veteran was unable to work, and he has never raised the issue of TDIU. Because the evidence indicates that the Veteran was only temporarily unable to work due to service-connected disabilities, and not prevented from securing or following a substantially gainful occupation, the Board finds that TDIU has not been raised by the record and is not on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, 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.