Citation Nr: 1432011 Decision Date: 07/16/14 Archive Date: 07/22/14 DOCKET NO. 10-48 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). 2. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a seizure disorder. 3. Entitlement to an initial disability rating higher than 10 percent prior to August 25, 2012, for bilateral Achilles tendon injuries. 4. Entitlement to an initial disability rating higher than 10 percent for left Achilles tendon injury, effective from August 25, 2012. 5. Entitlement to an initial disability rating higher than 10 percent for right Achilles tendon injury, effective from August 25, 2012. 6. Entitlement to service connection for a seizure disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from October 1981 to October 1984. This matter came before the Board of Veterans' Appeals (Board) on appeal from adverse decision in 2008, 2009, and 2010. The Board remanded the issues on appeal in 2013. They are now returned to the Board. The issue of service connection for a seizure disorder 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's mental disorders, including bipolar disorder, paranoid schizophrenia, anxiety disorder, and depression, are not related to service. 2. The Veteran underwent withdrawal seizures secondary to a medication change during an April 23-25, 2006, hospitalization, but the Veteran was not in receipt of VA hospital care, or medical or surgical treatment or examination by a VA provider, during that hospitalization. 3. The Veteran's right and left Achilles tendon/ankle disabilities have, each, been productive of pain and giveaway weakness throughout the appeal period; but not marked limitation of motion. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder was not incurred during service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). 2. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for seizure activity due to medical care from April 23-25, 2006, are not met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2013). 3. The criteria for a separate rating of 10 percent, but no higher, for right Achilles tendon injury have been met the effective date of service connection; that is, July 3, 2007. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5271 (2013). 4. The criteria for a separate rating of 10 percent, but no higher, for left Achilles tendon injury have been met the effective date of service connection; that is, July 3, 2007. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5271 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters dated in August 2007, November 2008, and April 2010. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). These letters informed the Veteran of the criteria to establish entitlement to the benefits sought. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as prescribed by the facts and circumstances in this case. The Veteran's service treatment records, VA treatment records, and private medical records are in the file. In addition, he was accorded multiple VA examinations with regard to his claim for an increased rating for his bilateral Achilles tendon disability, and a VA examination with regard to his claim for service connection for an acquired psychiatric disorder. The Board has reviewed the ensuing reports and opinions, and finds that they are adequate because the examiners conducted a personal examination of the Veteran and considered the Veteran's subjective complaints; reviewed the claims file and discussed the Veteran's medical history; and explained how the evidence supported the opinions. See, e.g., Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (providing, basically, that a medical [examination] is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Veteran was also afforded an opportunity for a Board hearing, which he initially accepted, but then cancelled. He has not indicated there are any additional records that VA should seek to obtain regarding the issue resolved in this decision. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). II. Service connection for an psychiatric disorder other than PTSD In September 2013 the Board denied the issue of service connection for PTSD; but the issue of service connection for other psychiatric disabilities was not resolved. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for psychoses if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Analysis Service treatment records do not relate any complaints, diagnosis, or treatment for a psychiatric disorder, but VA and private medical records dating from December 2004 advise of treatment, including psychotropic medication and mental health counseling, for various psychiatric disorders, including bipolar disorder, paranoid schizophrenia, anxiety disorder, and depression. There is, however, no record in the claims file of these disorders until 1999; more than 10 years after service. See, e.g., May 2008 letter from private psychiatrist. Service connection on a direct basis under 38 C.F.R. § 3.303(a) or under the presumptive provisions of 38 C.F.R. § 3.307(a), 3.309(a) is therefore not warranted. As for service connection under 38 C.F.R. § 3.303(d), in the May 2008 letter, a private psychiatrist opined that the Veteran's depression developed while he was in the military. He remarked that the Veteran began drinking during service to deal with his mood swings, and stated that "without alcohol clouding the picture he was noted to have severe bouts of depression and mania." Although this opinion is based on the Veteran's post-service account of his experiences and feelings during service (see, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described), it is nonetheless probative evidence in support of the Veteran's claim. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (providing that it is error to reject a medical opinion solely on the basis that the medical opinion was based on a history given by the Veteran). It is, however, countered by VA examination evidence. In November 2013 the Veteran was accorded a VA psychiatric examination. According to this examiner, "that [the Veteran] managed some emotional distress with alcohol is at least as likely as not," but it does not follow that the onset of heavy alcohol use aligned with the onset of the Veteran's subsequently diagnosed psychiatric disorders. In this regard the Board is inclined to agree, because despite the Veteran's report that he began to use alcohol during service, it is neither alleged nor shown the Veteran was constantly inebriated during service, as would mask underlying psychiatric symptoms. In other words, no bipolar or other disease symptoms were "unmasked" when the Veteran was not intoxicated during service, and for many years after service. The Board accordingly finds the VA examination opinion to be compelling evidence against the claim. It was derived after careful review of all of the evidence in the claims file (including the private psychiatrist's commentary), after personal examination of the Veteran and consideration of his lay contentions, and is supported by the Veteran's successful completion of his four year enlistment. The private physician's opinion, which did not account for the Veteran's apparent asymptomatology when not intoxicated during service is of decidedly less weight. See Evans, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). To the extent that the Veteran himself suggests that his mental illness may be related to his service, there is no indication that he is qualified through specialized education, training, or experience to diagnosis a psychiatric disorder or offer an opinion on causation. See, e.g., Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (providing that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). See also Barr v. Nicholson, 21 Vet. App. 303, 307 (noting that lay persons are not competent to opine as to medical etiology or render medical opinions). Accordingly, the Veteran's contention that a post-service psychiatric disorder began during service or is related to his experiences in service is mere speculation and is accorded no probative weight. The weight of the evidence is consequently against the claim. Service connection for an acquired psychiatric disorder variously diagnosed as bipolar disorder, paranoid schizophrenia, anxiety disorder, and depression, must therefore be denied and the benefit-of-the-doubt standard of proof does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). III. Entitlement to §1151 compensation for an additional disability secondary to care from April 23-25, 2006 In addition to the foregoing, the Veteran seeks compensation under the provisions of 38 U.S.C.A. § 1151 for a seizure disorder. Pursuant to 38 U.S.C.A. § 1151, a veteran may be compensated for a "qualifying additional disability" that was not the result of the Veteran's willful misconduct and that is actually and proximately caused by VA hospital care, medical or surgical treatment, or examination furnished by VA. 38 U.S.C.A. § 1151(a); 38 C.F.R § 3.361. "To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the....medical or surgical treatment...upon which the claim is based to the Veteran's condition after such...treatment." 38 C.F.R § 3.361(b). A "qualifying additional disability" is actually caused by VA care, treatment, or examination when the VA care, treatment or examination "resulted" in the additional disability. 38 C.F.R § 3.361(c)(1). When an additional disability is caused by a Veteran's failure to properly follow medical instructions, such a disability will not be considered to have been caused by VA hospital care or medical treatment. 38 C.F.R § 3.361(c)(3). A "qualifying additional disability" is proximately caused by VA medical care, treatment, or examination when the disability results either from the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment; or from "an event" that is "not reasonably foreseeable." 38 U.S.C. § 1151(a); 38 C.F.R § 3.361(d)(1). To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show that either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without the Veteran's informed consent. 38 C.F.R § 3.361(d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the disability. The event does not have to be "completely unforeseeable or unimaginable," but it must "be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided." 38 C.F.R § 3.361(d)(1). The Veteran contends that his post-service seizure activity began on April 23, 2006, secondary to care (a medication error) by his local VA. See May 10, 2006, VA treatment record. He reports that he was taken off all "bz" and psychotropic medications during his April 23-25, 2006, hospitalization, which he says caused him to undergo withdrawal seizures. See, e.g., February 2009 VA treatment record. However, review of the record reveals that the Veteran was not in a VA facility or under the care of a VA provider during that time. Rather, VA and private medical records confirm that the Veteran was transported by ambulance to the emergency room of a private hospital on April 23, 2006, due to hypotension and altered mental status; from whence he was directly admitted for inpatient care in that facility. See May 23-25, 2006 hospital records from St. Bernards Medical Center. He was discharged on April 25, 2006, to home. In fact, the Veteran did not resume care with VA until May 10, 2006, when he reported to his VA Community Based Outpatient Clinic with complaints of "having seizures." As the Veteran was not in receipt of VA hospital care, or medical or surgical treatment, or examination furnished by VA during the aggrieved timeframe, the criteria for a grant of Section 1151 compensation are not met and the benefit of the doubt standard of proof does not apply. IV. Increased rating, Achilles Tendon Injury In a rating decision dated in February 2008, the RO granted service connection for bilateral Achilles tendon injuries (also claimed as weakness of ankles and bilateral ankle condition) with a single evaluation of 10 percent effective July 3, 2007. The Veteran appealed for a higher initial rating. In a rating decision dated in October 2012 the RO discontinued the single 10 percent rating and granted a separate rating of 10 percent, each, for right and left Achilles tendon injury, effective August 25, 2012. The Veteran continues to press for a higher rating. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). Prior to August 25, 2012, the Veteran's bilateral Achilles tendon injury disability was assigned a total rating of 10 percent under the tenosynovitis provisions of Diagnostic Code 5024. A separate rating of 10 percent, each ankle, has been assigned under the limitation of motion of the ankle provisions of Diagnostic Code 5271 since August 25, 2012. Under Diagnostic Code 5024, tenosynovitis is rated based on limitation of motion of the joint as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Degenerative or traumatic arthritis, established by x-ray findings, is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Under Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of motion; and a 20 percent rating is assigned for marked limitation of motion. Normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45. 38 C.F.R. § 4.71, Plate II. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Facts The Veteran has complained of bilateral ankle pain and unsteadiness throughout the appeal period; and he has been outfitted by VA with ankle braces since at least July 2007. See, e.g., VA medical records dated in May and September 2007; April 2008; November 2010; and March 2012. During an October 2007 VA Orthopædic Consult he reported that his ankles gave out on him at times, and said that his ankle corsets helped in supporting his ankles. Physical examination found the Veteran able to weight bear without difficulty, and there was no swelling, inflammation, erythema, or obvious bony abnormality; but there was mild discomfort with plantar flexion, and the Veteran walked with a mild antalgic gait. Treatment plan was for continued use of bilateral ankle corsets and entry into physical therapy. During an April 2008 physical therapy session the Veteran complained of bilateral ankle weakness and reported that his ankles were continuing to give out on him; even while wearing his ankle corsets. The therapist observed that the Veteran had a mild antalgic gait, but no swelling, inflammation, bony abnormality, or erythema was noted. On VA examination in August 2012, the Veteran complained of continued pain and occasional swelling in both ankles. He also complained of instability with frequent ankle rolls/injuries; and reported that he wore boots or high tops for support. He added that he was unable to get out of bed for 4 or 5 days per month due to increased swelling and pain. Range of motion testing found right and left ankle plantar flexion of 45 degrees or greater, with pain beginning at 45 degrees; and right and left ankle dorsiflexion of 10 degrees or better, with pain beginning at 10 degrees. According to the examiner, there was no additional limitation of motion after repetitive use testing, and no laxity or ankylosis, but there was pain on movement of both ankles, and functional loss of range of motion after repetitive use in each ankle, described by the examiner as "less movement than normal." The examiner added that the Veteran's ankle function was not so diminished that amputation with prosthesis would equally serve the Veteran. On VA examination in November 2013, the Veteran complained of pain diffusely about the ankle. Range of motion testing found right and left ankle plantar flexion of 45 degrees or greater, and right and left ankle dorsiflexion of 20 degrees or better. X-rays of the left and right ankle were negative. According to the examiner, there was no laxity, ankylosis, additional limitation of motion after repetitive use testing, or functional loss of range of motion, but there was pain on palpation of both ankles. The examiner added that the Veteran's bilateral ankle disorder did not impact his ability to work. Analysis Preliminarily, the Board notes that there is no x-ray evidence of arthritis, so a higher rating under the provisions of Diagnostic Code 5024-5033 is not possible. As for a rating higher than 10 percent prior to August 25, 2012, under Diagnostic Code 5271, the record contains medical evidence of right and left ankle pain and giveaway weakness since the grant of service connection. In fact, the Veteran has worn ankle braces and walked with an antalgic gait throughout the appeal period; and he has complained, since May 2007, of occasionally falling, even with his ankles braced. Accordingly, and consistent with the RO's October 2012 grant of a separate 10 percent rating for each ankle, the Board finds that the criteria for a 10 percent rating, each ankle, have been met since the effective date of service connection; that is, July 3, 2007. A higher rating of 20 percent, for either ankle, based on marked limitation of motion is not warranted as, notwithstanding the Veteran's complaints of pain and his continued use of bilateral ankle braces, there has been no objective evidence of laxity at any time during the appeal period; no clinical evidence of ankle swelling, inflammation, bony abnormality, or erythema during the appeal period; the Veteran has had full (45 degrees) plantar flexion, and at least 10 degrees dorsiflexion throughout the appeal period; and he has been able to weight bear throughout the appeal period. This disability picture does not more nearly equate to a finding of marked limitation of motion. 38 C.F.R. § 4.7. See also 38 C.F.R. § 4.71, Plate II (providing that normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45). The Board accordingly finds that the criteria for a higher schedular rating of 20 percent, for either ankle are not met at any time during the appeal period and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). The Board further finds that a higher rating under some alternative diagnostic criteria is not warranted, since the Veteran has not been diagnosed as having ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5270. There is no other potentially applicable criteria that provides for a rating higher than 20 percent. The Board has also carefully considered the Veteran's complaints of right and left ankle pain under DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (providing that VA may, in addition to applying schedular criteria, consider granting a higher disability rating when functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination is demonstrated, to include during flare-ups and with repeated use, if those factors are not contemplated in the rating criteria). However, the assigned rating criteria contemplates pain and limitation of motion. As for an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service- connected disability is inadequate. Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is adequate; and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the assigned diagnostic criteria contemplate the severity and symptomatology of the Veteran's right and left Achilles tendon injuries, including his complaints of pain and giveaway; and there is no evidence in the claims file of symptomatology that does not comport within the schedular criteria. Therefore, the diagnostic criteria are not inadequate, and referral for consideration of extraschedular rating is not necessary. Thun, supra. Finally, the Veteran does not allege, and the evidence, including Social Security disability records, does not show, that his service-connected right and left Achilles tendon disabilities, alone, are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). Indeed, the 2014 VA examiner specifically determined that the Veteran's bilateral ankle disorder does not impact his ability to work. Accordingly, the Board finds that the issue of TDIU has not been raised in connection with the Veteran's claim for an increased rating for his service-connected left and right Achilles tendon/ankle disability. ORDER Service connection for an acquired psychiatric disorder other than PTSD, variously diagnosed as major depressive disorder/depressive disorder; bipolar disorder; and schizophrenia, is denied. Entitlement to 38 U.S.C.A. § 1151 compensation for a seizure disorder due to services rendered on April 23, 2006, to April 25, 2006, is denied. Subject to the laws and regulations governing the award of monetary benefits, an initial disability rating of 10 percent, but no higher, for right Achilles tendon injury effective from July 3, 2007, is granted. Subject to the laws and regulations governing the award of monetary benefits, an initial disability rating of 10 percent, but no higher, for left Achilles tendon injury effective from July 3, 2007, is granted. REMAND As for the Veteran's claim for service connection for a seizure disorder, in-patient service treatment records associated with the claims file in May 2014 advise of repeated loss of consciousness and concomitant head trauma during service. In accordance with McLendon v. Nicholson, 20 Vet. App. 79 (2006), an opinion as to whether the Veteran's post-service seizure activity is related to his in-service head trauma and/or loss of consciousness should be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination regarding his claim for service connection for a seizure disorder. The VBMS file must be reviewed the examiner in conjunction with the examination; particularly, service treatment records associated with the claims file in May 2014. All indicated tests should be done, and all findings reported in detail. Following completion of the examination and a review of the VBMS file, the examiner is requested to opine as to whether it is at least as likely as not that the Veteran's post service seizure activity began in-service or is related to some incident of service. A complete rationale for all opinions must be provided. If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so state in the examination report, and explain why that is so. 2. After completion of the above, re-adjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 Supp. 2013). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs