Citation Nr: 18139828 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 14-36 284 DATE: October 1, 2018 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. An initial rating in excess of 10 percent for degenerative joint disease (DJD) of the right ankle is denied. REMANDED An initial compensable rating for bilateral hearing loss is remanded. FINDING OF FACT 1. The Veteran’s PTSD is related to stressors during service. 2. The Veteran’s DJD of the right ankle is manifested by moderate limitation of motion, to include during flare-ups. CONCLUSION OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for an initial rating in excess of 10 percent for DJD of the right ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to July 1968. The case is on appeal from an April 2014 rating decision. In May 2016, the Veteran testified at a Board hearing. When last on appeal in April 2018, the Board granted service connection for hearing loss and tinnitus. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Service connection for PTSD. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To establish service connection for PTSD generally, a veteran must show: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders (DSM)); (2) medical evidence establishing a link between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Analysis The Veteran has a current diagnosis of PTSD. At the Board hearing, he testified that his PTSD is related to his work as a medic during service. Specifically, he has flashbacks to one night where he arrived to a chaotic scene at the emergency room. The victims of a car accident where the military vehicle had hit a semitrailer head on had just arrived. According to the Veteran, blood was everywhere. The Veteran was assigned to prepare the body of the drive of the vehicle who had died. When moving the body to the morgue, the Veteran claims seeing the bag in which the body was placed move. Hearing Transcript at 13-15. In August 2018, the Veteran submitted a death certificate from another veteran who was treated at DeWitt Army Hospital in March 1967 and was reported to have died from injuries resulting from a motor vehicle accident (MVA) of a vehicle in which he was the passenger. Specifically, it was noted that this veteran had been in a car that struck another and then hit a tree broadside. In March 1967, the Veteran was working at DeWitt Army Hospital. This death certificate demonstrates that service members were treated for injuries resulting from a MVA at a time at which the Veteran may have been called into duty. This tends to corroborate the general outline of the stressor noted by the Veteran, and the Board finds that the Veteran’s in-service stressor has been established. In May 2016, the Veteran submitted a medical opinion from his VA psychiatrist in which he noted that he has been treating the Veteran since November 2015 for PTSD symptoms related to his work as a medic. A November 2015 VA treatment record notes recurrent intrusive and unwanted recollections of events witnessed while training to become a medic and, in particular the Veteran’s involvement in the direct care of gruesome injuries, such as cleaning blood and transporting and disposing of the bodies of the diseased. Based on this appointment, a diagnosis of PTSD was given. The Board finds the VA physician’s opinion linking the current diagnosis of PTSD to the in-service stressor is persuasive and establishes the nexus element to at least equipoise. When reasonable doubt is resolved in the Veteran’s favor, the Board finds that his PTSD is related to an in-service stressor. As a result, service connection for PTSD is warranted. 2. An initial rating in excess of 10 percent for DJD of the right ankle. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s right ankle DJD is rated under DC 5271, which provides for a maximum schedular rating of 20 percent for marked limitation of range of motion and a 10 percent rating for moderate limitation of range of motion. 38 C.F.R. § 4.71a, DC 5271. Normal range of motion of the ankle is zero to 20 degrees for dorsiflexion and zero to 45 degrees for plantar flexion. See 38 C.F.R. § 4.71, Plate II. Analysis The Veteran was first afforded a VA examination of his right ankle in October 2013. He reported flare-ups in cold weather and when putting pressure on his right ankle. Right ankle plantar flexion was to 35 degrees, reduced to 30 degrees with pain. Right ankle dorsiflexion was to 15 degrees, reduced to 10 degrees with pain. Left ankle plantar flexion was to 40 degrees and dorsiflexion was to 20 degrees without pain. On repetition, right ankle plantar flexion was to 30 degrees and dorsiflexion was to 10 degrees. There was no reduction in range of motion in the left ankle. Functional loss of less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, standing and weight-bearing were noted. Tenderness and pain were noted in the right ankle and some decrease in strength was noted as well. A lack of laxity, inversion, and ankylosis were noted. The Veteran occasionally used a cane/elastic stick. The Veteran’s right ankle pain, weakness, and fatigability were said to limit his functional ability during flare-ups, but, without objective evidence, the examiner was unable to quantify the degrees of range of motion during a flare-up. At the May 2016 Board hearing, the Veteran noted difficulty going down stairs because of poor ankle flexibility. When going up stairs, he noted that his toes seem to get stuck on the step. He stated that he was having lack of mobility with his foot. He also reported having pain during the colder parts of the year. The Veteran was afforded another VA examination in May 2018 pursuant to the Board’s April 2018 remand. He stated that his right ankle throbs all the time and that stiffness in the ankle causes difficulty going down stairs and with standing and walking more than 10 minutes. The right ankle gets worse with cold weather. He noted taking Advil for relief twice per day. Right ankle dorsiflexion was to 20 degrees and plantar flexion was to 40 degrees. Pain was noted on rest, but not with weight-bearing. Decreased range of motion and pain were said to contribute to functional loss. Pain on palpation was observed. Left ankle range of motion was normal without pain on rest or weight-bearing. Repetitive motion did not lead to reduction in range of motion in either ankle. Pain was said to limit functional ability during a flare-up. Normal muscle strength was observed bilaterally. There was no ankylosis in the right ankle, but instability or dislocation was suspected bilaterally. No assistive devices were used for ambulation. Flare-ups with use and weather changes were noted. In a June 2018 supplemental report, the examiner noted that he was unable to describe range of motion during a flare-up because there is no change in range of motion on examination, indicating that range of motion is likely preserved during periods of flare-ups, as well as during periods of use over time. The new VA examination and addendum now provide sufficient evidence for deciding the claim. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds that a rating in excess of 10 percent is not warranted. The Veteran has some reduction in right ankle range of motion, as compared to the left ankle. This was most acutely demonstrated during the October 2013 VA examination when dorsiflexion was to 10 degrees with pain and plantar flexion was to 30 degrees with pain. In June 2018, the VA examiner opined that range of motion was likely preserved during periods of flare-ups because no changes in range of motion were observed on examination. Further, no ankylosis was observed on examination, and the Veteran’s testimony regarding lack of mobility in the foot in essence describes reduced range of motion, not ankylosis, as he testified he was still able to go up and down steps, though with some difficulty. “Moderate” is “tending toward the mean or average amount or dimension.” www.merriam-webster.com/dictionary/moderate. Given the range of motion testing, and with consideration of painful motion, flare-ups and other factors, the Board finds that the evidence shows limitation of motion of the right ankle to no worse than a moderate level. See 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran retains motion in the right ankle, even to almost normal levels according to the more recent VA examination, and that the range of motion is likely retained through flare-ups. It cannot be said that this is beyond an average type of limitation. “Marked” is being “distinctive or emphasized.” www.merriam-webster.com/dictionary/marked. Given the retained range of motion of the right ankle, the Board cannot conclude that there is limitation so distinctive or emphasized that it would approximate marked limitation of motion. Therefore, the Board finds the preponderance of the evidence is against an initial rating in excess of 10 percent for DJD of the right ankle. Thus, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Accordingly, a higher initial rating is not warranted. REASONS FOR REMAND An initial compensable rating for bilateral hearing loss. As noted previously, the Board granted service connection for hearing loss in the April 2018 decision. Later in April 2018, the RO implemented the grant, and assigned a noncompensable (zero percent) rating for bilateral hearing loss. In June 2018, the Veteran submitted a notice of disagreement (NOD) with the decision, requesting a higher initial rating. A statement of the case (SOC) has not yet been issued. Thus, while the RO may be addressing this matter, the Board has jurisdiction to remand this issue for the issuance of an SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Therefore, this claim is being remanded for an SOC. The matter is REMANDED for the following action: Unless the benefit sought is granted in full, issue the Veteran an SOC with respect to the issue of entitlement an initial compensable rating for bilateral hearing loss. This issuance should include notification of the need to timely file a substantive appeal to perfect an appeal on the issue. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George