Citation Nr: 1631637 Decision Date: 08/09/16 Archive Date: 08/12/16 DOCKET NO. 11-08 877A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 2. Entitlement to an increased rating for fracture of the left ankle with residual ligament thickening and surgical scars, currently evaluated as 10 percent disabling. REPRESENTATION Appellant is represented by: The American Legion ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran had active service from September 1987 to September 1991. He was awarded the Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2009 and September 2010 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina that, respectively, denied increased ratings for the Veteran's service connected left ankle disability and PTSD. The Veteran withdrew his power of attorney from the American Legion in a statement received in April 2011, and at that time he stated that he will be representing himself. The issue of the Veteran's entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is no longer before the Board, inasmuch as, following the Board's December 2013 remand, that issue was granted in a March 2015 rating decision issued by the Appeals Management Center (AMC). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. First, with regard to the Veteran's claim for an increased PTSD rating, there was not substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In its December 2013 remand, the Board "specifically requested [the examiner] to include an Axis V assessment in the diagnostic formulation (GAF Scale) pertaining to the symptomatology associated with the Veteran's PTSD, and an explanation of what the assigned score represents." This was not done. Rather, the examiner merely stated that the Fifth Edition of Diagnostic and Statistical Manual of Mental Disorders (DSM-5) no longer requires computation of a GAF score. VA has amended 38 C.F.R. § 4.125(a) to require the diagnosis to conform to DSM-5, but this amendment does not apply to cases such as this one that were initially certified to the Board prior to August 4, 2014. See Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (Mar. 19, 2015). The examiner also failed to undertake all the testing that was directed by the Board. While structured malingering interview was done, there was no neuropsychological assessment. As such, a new examination is necessary. Remand is unfortunately required on the Veteran's claim for an increased ankle rating. As directed by the Board, the examiner did opine that there was no malunion on nonunion of the fibula. However, as noted by the examiner, the Veteran underwent surgery in October 2009 to repair fibula nonunion. This is verified by the Veteran's VA treatment records. After his first ankle surgery, in July 2009, post-operative records noted nonunion of the fibula. See records of August 7, 2009; August 25, 2009; September 22, 2009. This raises the question of whether the Veteran is entitled to a separate rating for nonunion of the fibula for the one year period prior to October 16, 2009, the date that the Veteran filed his claim for an increased rating. See 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. § 3.400(o). However, it is unclear when, precisely, the nonunion of the fibula was diagnosed. A March 3, 2009, radiology report made no mention of any fibula fracture or nonunion, finding only an arthritic spur and lateral soft tissue swelling. However, a July 8, 2009, radiology report stated that "[t]here appear[s] to be an old fracture of the lowermost centimeter of the fibula versus a separate ossification center. X-ray of the left ankle is suggested for further evaluation since this does not show well on 03/03/09 left ankle x-ray." This fracture is not noted on subsequent radiology reports from July 22, 2009, and a report from July 28, 2009, found "no acute fracture or dislocation." The Veteran's second ankle surgery was done on October 7, 2009. The pre-operative notes stated that that Veteran presents for preop evaluation of painful left ankle. Veteran reports history of trauma to the foot/ankle including what he relates as a talus fracture which was managed with casting. The veteran had multiple ankle symptoms and preop imaging indicated ankle ligamentous pathology, talus exostosis and an incidental finding involving the distal fibular was also identified. The fibula was not very problematic so in July 2009 a decision was made to surgically address the talus and ankle ligament pathology first with the plan for further evaluation of the ankle after surgery to determine if indeed the fibular fracture was contributory. After complete recovery from the initial surgery, the veteran expressed significant discomfort and pain upon palpation of the distal fibular malleolus and also pain to this area upon weightbearing. The veteran now request surgical repair of the fibular in hopes of reducing pain and improving function. However, the same record then stated that the Veteran's March 2009 x-ray did, in fact, show "distal fibular malleolus nonunion/fracture line with cystic changes to fibular malleolus and talus." The pre-surgery report concluded "[a]nkle pain and likely nonunited distal fibular malleolar fracture tentative surgery plan: debridement and ORIF of fibular fracture and cast immobilization." This was indeed accomplished; an October 8, 2009, radiology report noted "good reduction and pinning of a distal fibular tip fracture." Given the information before the Board, it is unclear when any nonunion of the Veteran's fibula first manifested, and whether it was prior to the Veteran's July 2009 ankle surgery. As such, an opinion is needed from an appropriate specialist physician. All pertinent radiology images possessed by the Veteran's Health Administration should be obtained prior to this opinion being requested by the AMC. All outstanding VA records should also be requested. The most recent documents are from February 5, 2015. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorizations, request any outstanding treatment records. This should specifically include any private mental health records, VA records from the period after February 5, 2015, and all radiology images for the period beginning October 19, 2008. 2. After the above has been completed, the Veteran should be afforded a VA psychiatric examination to determine the current severity of his PTSD. The claims folder should be made available to and reviewed by the examiner, and a notation to the effect that this record review took place should be included in the report. All appropriate testing should be conducted, including a neuropsychological assessment as recommended by the July 2010 VA examiner. The examiner is specifically requested to include an Axis V assessment in the diagnostic formulation (GAF Scale) pertaining to the symptomatology associated with the Veteran's PTSD, and an explanation of what the assigned score represents. Although DSM-5 does not require computation of a GAF score, the DSM-IV applies to this case, as it was initially certified to the Board prior to August 4, 2014. The examiner must provide a clear rationale for all opinions, to include a discussion of the facts and medical principles involved. 3. A medical opinion should be obtained from an appropriate specialist physician to determine when any nonunion of the fibula manifested in the Veteran's service connected left ankle disability. The claims folder must be made available to the examiner for review, to specifically include the radiology images discussed above, and a notation to the effect that this record review took place should be included in the report. The physician should respond to the following: For the period beginning October 19, 2008, is it at least as likely as not (50 percent probability or more) that the Veteran has had nonunion of the left fibula or malunion with impairment of the ankle? If so, what is the date that such nonunion or malunion was first ascertainable? All questions should be answered to the extent feasible, so that the Board may rate the Veteran's disability in accordance with the specified criteria. If the examiner is unable to make any determination, he or she should so indicate and include an explanation. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).