Citation Nr: 1754170
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 12-15 637 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico

THE ISSUES

1. Entitlement to a total rating based on individual unemployability (TDIU).

2. Entitlement to an increased initial rating for status post right ankle fracture (right ankle disability), rated at 10 percent.

3. Entitlement to an increased initial rating for status post left ankle fracture (left ankle disability), rated at 10 percent prior to April, 2016.

4. Entitlement to an increased initial evaluation for left shoulder degenerative joint disease, status post acromioplasty (left shoulder disability) evaluated at 10 percent prior to April, 2016 and at 20 percent thereafter.

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

J. Trickey, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1967 to August 1991.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which granted service connection for left shoulder, right ankle, and left ankle disabilities, effective February 6, 2008. The Veteran timely appealed. During the pendency of the appeal, a March 2015 rating decision granted an earlier effective date of January 1, 1991 for the aforementioned disabilities.

The Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge in April 2015. A transcript of the hearing is of record.

The issue of entitlement to increased rating for a left shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. The Veteran is service connected for panic disorder, evaluated at 30 percent disabling, effective February 6, 2008 and at 70 effective June 18, 2012; thoracolumbar degenerative joint disease, evaluated at 40 percent disabling, effective February 6, 2008; with a combined disability rating of at least 90 percent, effective February 6, 2008.

2. The Veteran is precluded from securing or following a substantially gainful occupation as a result of service-connected disabilities.

3. The Veteran’s right ankle disability has been manifested by limitation of motion, pain on motion, swelling, instability, pain, stiffness, effusion, and tenderness throughout the appellate period.

4. The Veteran’s left ankle disability has been manifested by has been manifested by limitation of motion, pain on motion, swelling, instability, pain, stiffness, effusion, and tenderness throughout the appellate period.

CONCLUSIONS OF LAW

1. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017).

2. The criteria for establishing the maximum schedular initial disability rating of 20 percent for post right ankle fracture are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017).

3. The criteria for establishing the maximum schedular initial disability rating of 20 percent for post left ankle fracture are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has met all statutory and regulatory notice and duty to assist provisions. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326. In light of the full grant of benefits sought here, any deficiency in notice or assistance is deemed harmless error.
TDIU

A total 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.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

The Veteran is service connected for panic disorder, evaluated at 30 percent disabling, effective February 6, 2008 and at 70 effective June 18, 2012; thoracolumbar degenerative joint disease, evaluated at 40 percent disabling, effective February 6, 2008; with a combined disability rating of at least 90 percent, effective February 6, 2008. The Veteran meets the schedular percentage requirements for consideration of a total disability rating under 38 C.F.R. § 4.16(a).

The Board must consider the Veteran’s employment history, educational and vocational attainment in determining if he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b).

The Veteran’s educational and occupational history reflects that he does not have a college degree and worked solely as a skilled tradesman in heating ventilation and air conditioning services after discharge. The Veteran has not had substantially gainful employment since May 2013 when he worked for a private employer.

The record supports a finding that the Veteran’s service-connected disabilities render him unemployable. The Veteran’s psychiatric disability is noted to produce reduced productivity and reliability.

Further, the Veteran’s numerous orthopedic disabilities reduce his residual functional capacity to less than sedentary. The Board notes that a December 2012 VA examination found the Veteran capable of sedentary work that included frequent position changes. However, the Board also notes that VA examination in April 2016 found the Veteran was limited in arm raise to the shoulder level. In light of the combined effect of the Veteran’s multiple orthopedic and psychiatric disabilities, the Board finds that he has a less than sedentary residual functional capacity for substantial gainful employment.

Accordingly, the Board finds that the severity of the Veteran’s service-connected psychiatric and orthopedic disabilities render likely render it impossible for the Veteran to secure and maintain substantially gainful employment. With resolution of doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017).

Increased Initial Evaluation – Bilateral Ankle Disability

As noted above, a March 2015 rating decision granted an earlier effective date of January 1, 1991 for service connection for bilateral ankle disabilities based on the receipt the Veteran’s service records after an initial adjudication of his original claim in June 1992.

The Veteran is currently assigned an initial evaluation of 10 percent prior to April, 2016 and 20 percent thereafter for his left ankle disability. The Veteran has an initial evaluation of 10 percent for his right ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271.

Diagnostic Code 5271 provides a 10 percent disability rating for moderate limitation of motion of the ankle and a 20 percent disability rating for marked limitation of motion of the ankle. The words “moderate” or “marked” are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6.
It should also be noted that use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Normal or full range of motion for the ankle is dorsiflexion (extension) from zero to 20 degrees and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II.

The Board notes that the Veteran’s pertinent medical history shows fracture of the right distal fibula in 1969 and an avulsion fracture of the left distal fibula in 1976.

The Veteran was afforded a VA examination in November 1991. Unfortunately, VA physicians did not have access to the Veteran’s service treatment records showing prior fractures of the bilateral ankles. The Veteran reported intermittent pain bilaterally that was accentuated by the cold. Diagnostic imaging was negative for any abnormalities; however, as noted, the service record was unavailable.

The Veteran was not examined for his bilateral ankle disabilities again until May 2008. The Veteran was noted have limitation of motion, pain on motion, and symptoms of swelling, instability, stiffness, effusion, and tenderness. The Veteran testified at the April 2015 Board hearing that upon walking short distances, he experiences pain and discoloration of the bilateral ankles. The Veteran also testified that he experiences significant pain, limitation of motion of both ankles, and has worn ankle braces from discharge to the present for his bilateral ankle disability.

Based on the evidence of record, including the Veteran’s credible and probative testimony regarding the severity and duration of his symptomatology, the Board finds that the Veteran’s bilateral ankle disorder has more closely approximated marked limitation of motion as of separation from service based on symptoms of limitation of motion, pain on motion, and additional symptoms of swelling, instability, stiffness, effusion, and tenderness. In this case, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the applicable criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017).

ORDER

Entitlement to a total disability rating due to individual unemployability (TDIU) is granted, subject to the applicable laws and regulations governing the payment of monetary benefits.

Entitlement to an initial 20 percent disability rating for service-connected status post right ankle fracture (right ankle disability) is granted, subject to controlling regulations governing the payment of monetary awards.

Entitlement to an initial 20 percent disability rating for service-connected status post left ankle fracture (left ankle disability) is granted, subject to controlling regulations governing the payment of monetary awards.

REMAND

Increased Evaluation – Left Shoulder

Following the Board’s June 2015 remand, the Veteran was afforded VA examinations for his left shoulder disability in April 2016.

Thereafter, the Court of Appeals for Veterans Claims (Court) held that the plain language of § 4.59 requires that an adequate VA examination of the joints must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and of any opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016).

The April 2016 VA examiner indicated that there was evidence of pain with weight bearing of the left shoulder, but did not indicate whether there was pain in active or passive motion or describe any resulting functional impairment. Accordingly, to comply with the requirements outlined above, the Board finds that another examination is warranted. Correia, 28 Vet. App. 158.

The Board also notes that the Veteran receives treatment at the Albuquerque Medical Center and New Mexico Healthcare Service; however his records from June 2016 are not associated with the claims file. VA treatment records are constructively of record and must be secured to allow for a fully informed appellate review. Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1. Obtain all VA treatment records for the Veteran dated from March 2016 to the present and associate such record with the claims file. If no such records exist, obtain a negative response and associate that response with the claims file.

2. After any additional records are associated with the claims file, the RO should schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected left shoulder disability. The claims file should be made available to the examiner for review in connection with the examination.

In particular, the VA examination must include range of motion testing for the left shoulder in the following areas:

Active motion;
Passive motion;
Weight-bearing; and
Nonweight-bearing.

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided.

3. After completing any additional notification or development deemed necessary, the Veteran’s claim for an increased disability evaluation for the left shoulder should be readjudicated. If the claim remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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