Citation Nr: 1520102	
Decision Date: 05/11/15    Archive Date: 05/26/15

DOCKET NO.  13-17 499	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to a disability rating in excess of 70 percent for major depressive disorder, alcohol dependence, and pain disorder.

2. Entitlement to a compensable disability rating for chronic right ankle sprain.

3. Entitlement to a compensable disability rating for chronic left ankle sprain.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Dean, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1998 to March 2003.

This matter is on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted an increased 50 percent disability rating for major depressive disorder, alcohol dependence, and pain disorder; and denied a compensable disability rating for chronic right and left ankle sprains.

A May 2013 Statement of the Case assigned a higher 70 percent rating for the Veteran's major depressive disorder, alcohol dependence, and pain disorder, effective as of the date of his claim for a higher rating in August 2010. The 70 percent rating is not a grant of the maximum benefits allowable; consequently, the evaluation of the Veteran's major depressive disorder, alcohol dependence, and pain disorder remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993).

This appeal was processed electronically using the Veterans Benefits Management System (VBMS) paperless claims processing system. Any future consideration of this appeal should account for this electronic record.


FINDINGS OF FACT

1. The Veteran's major depressive disorder, alcohol dependence, and pain disorder is not characterized by total occupational and social impairment.

2. His chronic right ankle sprain is manifest by moderately limited range of motion.

3. His chronic left ankle sprain is not manifest by ankylosis, limited motion, malunion of the os calcis or astragalus, or astragalectomy.



CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 70 percent for major depressive disorder, alcohol dependence, and pain disorder have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code (DC) 9434 (2014).

2. The criteria for a 10 percent disability rating, but no higher, for chronic right ankle sprain have been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.71a, DC 5270-5274 (2014).

3. The criteria for a compensable disability rating for chronic left ankle sprain have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.71a, DC 5270-5274 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2014).

A September 2010 letter notified the Veteran that he needed to provide, or request VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disabilities at issue. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010); Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008), overruled in part sub. nom. Vazquez-Flores/Wilson v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009). The letter also notified the Veteran of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim and how VA rates a disability and determines an effective date. Thus, the duty to notify is satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records (STRs) and other pertinent records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's STRs and VA medical records (VAMRs). While a November 2011 memorandum from the RO made a formal finding of unavailability regarding the Veteran's VAMRs from January 2003 to April 2004, these records are outside of the relevant time period for this appeal. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) ("The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim."). The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012).

The March 2011 and January 2013 VA examiners reviewed the Veteran's VAMRs and other pertinent documents, conducted physical examinations and interviewed the Veteran, and clearly indicated the Veteran's present level of physical and mental health disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The March 2011 and January 2013 examination reports are adequate to determine the issues on appeal. See id.

VA has satisfied its duties to notify and assist and the Board may proceed with appellate review.

Merits of the Claims

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

The Schedule assigns DCs to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. Id.; see 38 C.F.R. § 4.14.


Increased Disability Rating for Major Depressive Disorder, Alcohol Dependence, and Pain Disorder

The Veteran's service-connected major depressive disorder, alcohol dependence, and pain disorder has been evaluated as 70 percent disabling under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairment(s). See 38 C.F.R. § 4.130, DC 9434. The General Rating Formula is as follows:

A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DC. See id. VA must consider all symptoms of a claimant's disorder that affect his or her occupational and social impairment, including, if applicable those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-V). See Mauerhan v. Principi, 16 Vet. App. 436, 443. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id.

The Veteran's claims file includes evaluations based on the DSM-IV, which contains a global assessment of functioning (GAF) scale with scores ranging between zero and one hundred percent. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The scores reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996); DSM-IV. According to DSM-IV, a score of 61-70 indicates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." A score of 51-60 indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. A score of 41-50 indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 31-40 indicates "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work)." Id. The Court has found that certain scores may demonstrate a specific level of impairment. See Richard, 8 Vet. App. at 267 and Bowling v. Principi, 15 Vet. App. 1, 14-15 (2001) (observing that a GAF score of 50 indicates serious impairment).

Although an examiner's classification of the level of psychiatric impairment reflected in the assigned GAF score is probative evidence of the degree of disability, such a score is not determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria. See 38 C.F.R. §§ 4.2, 4.126 (2011); VAOPGCPREC 10-95 (March 31, 1995). Rather, VA must take into account all of the claimant's symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126.

VAMRs from November 2010 show the Veteran called the suicide hotline due to suicidal ideation without plan or intent. He admitted to drinking and reported he lost his driver's license for receiving his second DUI in five years, and was afraid he would be fired. August 2010 VAMRs show he was not fired and was not suicidal at the time, but started drinking again after he had been attending Alcoholics Anonymous meetings.

In March 2011, a VA examiner noted the Veteran had been receiving outpatient psychiatric and substance abuse treatment, and he had a diagnosis of depression. He reported being in a conflicted relationship for years, but just over a week prior to his examination, he moved out of the house. He described close relationships with his grandparents, a friend, and his daughter. He denied a history of suicide attempts but he said he had thought of it. He reported drinking every day and stated he was in a bar fight a year prior. He said he couldn't sleep, had a poor appetite, didn't enjoy himself, couldn't concentrate, had poor energy, and had anxiety attacks that caused him to go to the hospital. The examiner noted the Veteran was depressed all day every day and had daily panic attacks.

On examination, the Veteran was pleasant and cooperative and had a full range of affect. His mood was dysphoric and he did not have suicidal or homicidal thoughts or inappropriate behavior. The examiner concluded that the Veteran's symptoms caused reduced reliability and productivity, noting the Veteran has missed multiple days from work. He assigned the Veteran a GAF score of 45, which is indicative of any serious impairment in social, occupational, or school functioning.

In January 2013, a VA examiner noted the Veteran continued to receive outpatient treatment, and was recently diagnosed with PTSD due to childhood stressors, so not related to his military service. Symptoms associated with his major depressive disorder, alcohol dependence, and pain disorder included increased pain perception with low mood; late-onset insomnia and fractured sleep; suicidal ideation; disturbances of motivation and mood; and when intoxicated, acute and temporary mental confusion and impaired judgment.

The examiner noted the Veteran continued to present with a significant and complicated mix of psychiatric conditions, the combination of which resulted in moderate to severe impairment in social/occupational functioning. The examiner assigned a GAF of 45.

The criteria for a 100 percent rating for the Veteran's psychiatric disorder have not been mot or more nearly approximated.  The Board acknowledges the frequency, severity, and duration of all of the Veteran's numerous psychiatric symptoms, including, but not limited to, daily depression and panic attacks, difficulty sleeping, poor appetite, low energy, inability to concentrate, night sweats, intrusive thoughts, excessive drinking, suicidal ideation, increased pain perception persistent low mood, confusion and impaired judgment, obsessional rituals, memory loss, anger/irritability, impaired impulse control, etc.  See Mittleider v. West, 11 Vet. App. 181 (1998).  Clearly, he is significantly impaired as a result of his psychiatric disorders.  However, his disability has not resulted in total occupational and social impairment.  For example, he lives with his girlfriend and his daughter, despite strife and discord in his relationship with his girlfriend.  In addition, he has maintained full-time employment for the past 10 years working at a prison.  The January 2013 VA examiner described the Veteran's overall level of social and occupational functioning as moderate to severely impaired.  

In summary, the Veteran does not have symptoms equivalent in severity to a 100 percent rating under the Rating Formula, as his symptoms do not result in the level of occupational and social impairment compensated by this higher evaluation.  The preponderance of the evidence is against the Veteran's claim.  The benefit-of-the-doubt rule does not apply and entitlement to a disability rating in excess of 70 percent is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3 (2014); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Referral of the Veteran's psychiatric disorder for extraschedular consideration is not warranted.  See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008).  A comparison of his symptoms and resulting functional impairment with the schedular criteria does not show 'such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards.' 38 C.F.R. § 3.321(b).  In this regard, his various symptoms, as described above, as well as their effects on occupational and social functioning and general level of severity, are contemplated by the Rating Formula, which takes into account many such symptoms and the degree of occupational and social impairment they cause.  See 38 C.F.R. § 4.130, DC 9434.  Although a given symptom may not be specifically mentioned in the Rating Formula, the symptoms set forth therein are not meant to constitute an exhaustive list but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  See Mauerhan, 16 Vet. App. at 442.  There is no indication that the symptoms and clinical findings are otherwise exceptional or unusual, or are not adequately compensated by the 70 percent rating already assigned, as discussed above.  Accordingly, the first step of the inquiry is not satisfied.  Thus, consideration of related factors under the second step of the inquiry is not warranted.  See Thun, 22 Vet. App. at 118-19.  


Increased Disability Ratings for Chronic Right and Left Ankle Sprains

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.4, consideration must also be given to weakened movement, excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint).

The Schedule recognizes painful motion with joint or particular pathology as productive of disability. 38 C.F.R. § 4.59. Joints that are painful, unstable, or malaligned due to a healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints and not just to arthritis).

In Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011), the Court held that although painful motion is entitled to a minimum 10 percent rating, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. Id. at 43.

The Veteran's service-connected chronic right and left ankle sprains have been evaluated as 0 percent disabling under DC 5271 (limited motion). See 38 C.F.R. § 4.71a.  DC 5271 assigns a 10 percent disability rating for moderately limited range of motion of the ankle and a 20 percent disability rating for markedly limited range of motion of the ankle.  In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31.

The words slight, moderate, marked, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Use of terminology such as severe by VA examiners and others, although an element 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.

Pursuant to VA regulations, normal range of motion for ankle dorsiflexion is 0 to 20 degrees and for plantar flexion is 0 to 45 degrees. See 38 C.F.R. § 4.71a, Plate II.

The Board must also consider whether the Veteran is entitled to separate or higher disability ratings under other DCs that relate to the ankle. See 38 C.F.R. 4.71a, DCs 5270 through 5274.

DC 5270 assigns the following disability ratings for ankylosis of the ankle: 20 percent for in plantar flexion of less than 30 degrees; 30 percent for in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 (zero) and 10 degrees; and 40 percent for in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. See 38 C.F.R. § 4.71a.

DC 5272 assigns a 10 percent disability rating for ankylosis in good weight-bearing position and a 20 percent disability rating for ankylosis in poor weight-bearing position. See 38 C.F.R. § 4.71a.

DC 5273 assigns a 10 percent disability rating for moderate deformity resulting from the malunion of the os calcis or astragalus and a 20 percent disability rating for a marked deformity resulting from the malunion of the os calcis or astragalus. See 38 C.F.R. § 4.71a.

DC 5274 assigns a 20 percent disability rating for astragalectomy. See 38 C.F.R. § 4.71a.

VAMRs do not reflect ankle treatment for the time period in question.

During a March 2011 VA examination, there was no evidence of pain, ankle instability, or tendon abnormality on the left side, while there was guarding of movement and instability on the right.  Range of motion on the left side was 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for left plantar flexion, with no objective evidence of pain with active motion. On the right side, dorsiflexion was 0 to 10 degrees and plantar flexion 0 to 30 degrees, with no objective evidence of pain with active motion. There was no additional limitation on either side after three repetitions of range of motion. There was also no evidence of joint ankylosis, and radiographs did not show evidence of arthritis.

The symptoms associated with the Veteran's chronic left ankle sprain do not qualify for a higher rating under any of the DCs.  He does not have moderate or marked limited motion of his left ankle.  Rather, he had full range of motion of the left ankle with no pain, to include following repetitive motion, on VA examination in March 2011.  He denied pain or any other symptoms pertaining to his left ankle, and physical examination was entirely normal.  There was no indication of any pain, functional impairment, or flare-ups.  38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, 8 Vet. App. at 206-07.  Nor was there any evidence of ankylosis, astragalectomy (the surgical removal of the talus bone), or the malunion of os calcis or astragalus bones.  Therefore, a separate and/or compensable rating is not warranted for the Veteran's left ankle sprain.

However, a higher 10 percent disability rating is assigned for the Veteran's chronic right ankle sprain due to his complaints of daily pain and limited range of motion on the March 2011 VA examination.  He does not meet the criteria for a higher or separate rating, though.  There was no evidence of ankylosis, astragalectomy (the surgical removal of the talus bone), or the malunion of os calcis or astragalus bones.  The limited range of motion of the right ankle is not marked.  He lacks 10 degrees of dorsiflexion (1/2 of full) and 15 degrees of plantar flexion (1/3 of full).   Although there was guarding on movement, pain must actually affect the normal working movements of the joint to warrant consideration for a higher rating.  See Mitchell, 25 Vet. App. at 43.  Moreover, the 10-percent rating currently assigned compensates the Veteran for painful motion of the joint.  See 38 C.F.R. § 4.59.

With regard to the DeLuca factors under sections 4.40 and 4.45 of the regulations, the March 2011 VA examination report shows that the Veteran did not have objective evidence of pain following repetitive motion or additional limitation of motion after repetitive use of the right ankle, and the 10-percent rating currently assigned compensates for painful motion of the ankle on use, antalgic gait, and functional limitations on standing and walking.  See DeLuca, 8 Vet. App. at 206-07.  Accordingly, a higher rating is not warranted based on additional functional impairment on use of the right ankle, including during flare-ups.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07.

In sum, the preponderance of the evidence is against the Veteran's claim for a compensable rating for his chronic left ankle sprain.  The benefit-of-the-doubt rule does not apply and entitlement to a compensable disability rating is denied.  A 10 percent rating, but not higher, is warranted for his chronic right ankle sprain.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3 (2014); Gilbert, 1 Vet. App. at 55.

Referral of the Veteran's ankle disabilities for extraschedular consideration is not warranted.  See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008). A comparison of his symptoms and resulting functional impairment with the schedular criteria does not show 'such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards.'  38 C.F.R. § 3.321(b).  Specifically, the evidence shows that the Veteran's right ankle disability is manifested by pain, limited motion, and an antalgic gait.  His left ankle is essentially asymptomatic.  The right ankle manifestations are contemplated by DC 5271, which pertains to limited motion of the ankle.  See 38 C.F.R. § 4.71a. Sections 4.40, 4.45, and 4.59 of the regulations also contemplate pain, weakness, instability, fatigability, and incoordination of the joint.

Moreover, the fact that a particular symptom may not be mentioned in the criteria does not in itself warrant extraschedular referral.  For example, no symptoms are described in DC 5271 which, contrary to suggesting that they are not contemplated by the rating criteria, rather indicates that the presence of one or more such symptoms is assumed, and that the evaluation is based on their disabling effects or the objective manifestations of the disability, according to the rating criteria set forth in the schedule.  Indeed, the schedular criteria are generally designed not to compensate for specific symptoms, but instead for the average impairment in earning capacity due to disability resulting from such symptoms.  See 38 C.F.R. § 4.1. Similarly, although specific examples of functional impairment in the context of work and daily activities may not be mentioned in the criteria, the criteria are necessarily designed with a view toward compensating for such impairment.  See 38 C.F.R. § 4.10 (providing that the basis of disability evaluations is the ability of the body as a whole, or of the psych, or of a system or organ of the body, to function under the ordinary conditions of daily life including employment; see also 38 C.F.R. § 4.21 (2014) (providing that in applying the rating schedule, it is not expected that all cases will show all the findings specified in the criteria, but that coordination of rating with impairment of function will be expected in all instances).  Accordingly, the first step of the inquiry is not 

satisfied.  Thus, there is no need to consider whether 'related factors' are present under the second step of the inquiry, and referral for extraschedular consideration is not warranted.  See Thun, 22 Vet. App. at 118-19.

ORDER

A disability rating in excess of 70 percent for major depressive disorder, alcohol dependence, and pain disorder is denied.

A 10 percent disability rating (and no greater) for chronic right ankle sprain is granted.

A compensable disability rating for chronic left ankle sprain is denied.



____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs