Citation Nr: 18146622 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-21 275 DATE: November 1, 2018 ORDER Entitlement to service connection for an acquired psychiatric condition is denied. Entitlement to an evaluation in excess of 10 percent for a right long finger disability is denied. Entitlement to an evaluation of 10 percent, but not more, for ankylosis of the right long finger is granted. Entitlement to an evaluation of 20 percent, but not more, for a right ankle disability is granted. Entitlement to an evaluation of 20 percent, but not more, for surgical scars on the right ankle and right long finger is granted. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis for an acquired psychiatric disorder that is proximately due to or aggravated beyond its natural progression by his service-connected right ankle disability, cephalgia, or carpal tunnel syndrome. 2. The Veteran’s service-connected right long finger disability manifests as a gap of two inches between the fingertip and transverse crease of the palm. 3. There is ankylosis of the metacarpophalangeal joint in the Veteran’s right long finger. 4. Resolving reasonable doubt in the Veteran’s favor, his service-connected right ankle disability is characterized by marked limitation in motion. 5. The Veteran has three painful or unstable scars: two painful or unstable scars on his right long finger and one painful or unstable scar on his right ankle. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2018). 2. The criteria for an evaluation in excess of 10 percent for a right long finger disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.68, 4.71a, Diagnostic Code 5229 (2018). 3. The criteria for an evaluation of 10 percent, but not more, for ankylosis of the metacarpophalangeal joint in the Veteran’s right long finger have been met from August 5, 2015. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.71a, Diagnostic Code 5226 (2018). 4. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to an evaluation of 20 percent, but not more, for a right ankle disability have been satisfied from June 19, 2014 to July 24, 2015 and from September 1, 2015. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.71a, Diagnostic Codes 5270 to 5274 & 5262 (2018). 5. The criteria for an evaluation of 20 percent, but not more, for surgical scars on the right ankle and right long finger have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.118, Diagnostic Codes 7800 to 7805 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1986 to October 2009. The Board has thoroughly reviewed all the evidence in the claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume the Board overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including 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. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to Service Connection for an Acquired Psychiatric Condition The Veteran contends that he has an acquired psychiatric disorder secondary to his service-connected disabilities, to include his right ankle disability, cephalgia, and right wrist carpal tunnel syndrome. Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may be established for a disorder that is caused or aggravated by a service-connected disability. Id. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 447–48 (1995). To establish secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between the service-connected disability and the current disability. Allen, 7 Vet. App. at. 448. There is conflicting evidence regarding whether the Veteran has a current diagnosis for an acquired psychiatric disorder. VA treatment records do not document complaints, diagnoses, or treatment for an acquired psychiatric disorder. Psychological evaluations, depression screenings, and suicide screenings documented in the Veteran’s VA treatment records are uniformly negative. For instance, February 2014, May, 2014, June 2014, and September 2014 psychiatric evaluations showed normal judgment, orientation to time, place and person, and normal mood and affect. May 2014, February 2015, May 2015, May 2016, and May 2017 depression screenings document the Veteran’s reports that he was not feeling down, depressed, or hopeless, and he had not lost interest or pleasure in doing things. In September 2017, C.M., a clinical psychologist who does not treat the Veteran, completed a VA Form 21-0960P-2, Mental Disorders Disability Benefits Questionnaire (DBQ). C.M. reviewed the Veteran’s claims file and interviewed the Veteran. The Veteran reported reduced activity, sad mood, irritability, anxiety, less interest in sex, pain behaviors, impaired sleep, and fear of moving in certain ways that may cause pain in his right ankle. The Veteran reported that he used to be energetic, but felt tired and had difficulty falling asleep due to pain. He stated he had difficulty putting his thoughts together, lost his motivation to work, and engaged less in activities with his family due to frustration that his family did not better understand his pain and how it limits his activities. He also expressed sadness, anxiety, and guilt more days than not. C.M. diagnosed the Veteran with depressive disorder due to chronic pain syndrome with depressive features The Veteran received a VA psychiatric examination in October 2017. The VA examiner included in the examination report a summary of the Veteran’s VA treatment records from July 2009 to March 2015 that documented assessments that were negative for anxiety, depression, irritability. The examiner noted the Veteran’s mood and affect were described as normal. During the examination, the Veteran reported sleep disturbance due to pain, depressed mood, anxiety, and anger. The Veteran attributed his anxiety and irritability to concerns about maintaining his employment and his sense that his family does not appreciate his sacrifices. Based on her review of the Veteran’s claim file and her evaluation of the Veteran, the VA examiner concluded that the Veteran did not meet the diagnostic criteria for an acquired psychiatric disorder. According to the VA examiner, the Veteran reported mild, transient, and expected reactions to psychosocial stressors. She noted that the Veteran’s emotional reactions do not interfere with or impair his functioning. She noted that the Veteran maintained meaningful relationships, to include his marriage, engaged in weekly activities such as attending church and woodworking, worked with the same employer since 2009, and received promotions during that employment. In October 2017, the VA examiner responsible for the October 2017 VA examination report provided an addendum opinion addressing C.M.’s diagnosis in the September 2017 DBQ. The examiner again stated that the Veteran did not meet the diagnostic criteria for an acquired psychiatric condition. The examiner noted C.M.’s diagnosis, but reasoned that Veteran experienced mild symptoms of anxiety without meeting the criteria for a diagnosis of an anxiety disorder. The Veteran reported mild, transient, and expected reactions to psychosocial stressors that did not interfere with the Veteran’s functioning. The examiner again noted that the Veteran had not sought or received care for a psychological disorder. The Board concludes that weight of the probative evidence weighs against a finding that the Veteran has a current diagnosis for an acquired psychiatric disorder. The October 2017 VA examination report and addendum opinion are more probative than the DBQ completed by C.M. because they are more consistent with the Veteran’s VA treatment records, which are silent for reports of psychiatric symptomatology. The Veteran’s denials of psychological symptomatology occurred during primary care examinations and podiatry appointments over a period of many years. It is likely that the Veteran was motivated to provide accurate information to VA healthcare providers during these examinations and screenings because he was receiving medical care. In contrast, the record does not indicate that the Veteran has sought psychiatric care, and the examinations in which he described psychiatric symptoms are entirely related to his application for disability benefits administered by VA. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting personal interest may affect the credibility of the evidence). In reaching this conclusion, the Board notes a December 2017 opinion from R.J.d.R., a psychologist who has not treated the Veteran for an acquired psychiatric disorder. R.J.d.R. did not reach an independent conclusion that the Veteran had a current diagnosis, but instead based his opinion on C.M.’s DBQ and diagnosis. As noted above, the Board concludes that C.M.’s opinion is entitled to less probative weight than the VA examiner’s October 2017 opinions that the Veteran does not have a current diagnosis because they are more consistent with the medical evidence of record documenting the Veteran’s denials of psychiatric symptomatology. Because it is based on a less probative opinion, R.J.d.R.’s opinion is likewise less probative than the October 2017 VA examination report and addendum opinion concluding that the Veteran does not have a current diagnosis for an acquired psychiatric disorder. The Veteran may believe he has a current diagnosis for an acquired psychiatric disorder; however, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education that the Veteran does not have based on the evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Indeed, psychiatric disorders are not the type of conditions that are readily amenable to lay diagnoses because medical expertise is required to determine their etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Because the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for an acquired psychiatric disorder is denied. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2 (2016); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2016). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2016). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2016). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal exertion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. In that regard, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 1. Entitlement to an Evaluation in Excess of 10 percent for Right Long Finger Disability DC 5229 addresses limitation of motion of the index or long finger. A 10 percent rating is assigned for a gap of one inch or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. A noncompensable rating is assigned for a gap of less than one inch between the fingertip and proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension limited by no more than 30 degrees. An August 2015 VA examination report measured a gap of two inches (5.1cm) between the fingertip of the right long finger and the proximal transverse crease of the palm. An October 2015 VA examination did not make this finding; however, there is no evidence of sustained improvement in the Veteran’s right long finger. Under DC 5229, a 10 percent evaluation for limitation in the range of motion in the Veteran’s right long finger is warranted. The August 2015 VA examination also documents ankylosis of the metacarpophalangeal joint of the Veteran’s right long finger. The Veteran’s right long finger disability also weakens the Veteran’s grip making it more difficult for him to complete occupational tasks. Due to his ankylosis and interference with the overall function of the Veteran’s right hand, a 10 percent evaluation pursuant to DC 5226 is warranted. Additional evaluations under other applicable diagnostic codes are not warranted based on objective evidence of record. Moreover, the Board notes that the Veteran cannot receive compensation based on his combined evaluation that would exceed what he would receive for the amputation of his right long finger if an amputation was performed. See 38 C.F.R. § 4.68. Under 38 C.F.R. § 4.71a, DC 5154, the maximum evaluation for an amputated long finger is 20 percent. 2. Entitlement to an Evaluation in Excess of 10 Percent for a Right Ankle Disability In his March 2016 Notice of Disagreement, the Veteran contends that his service connected right ankle disability should be evaluated as 20 percent disabling due to marked limitation of the range of motion. Normal range of motion for the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5271 assigns a 10 percent evaluation for moderate limited motion of the ankle and a 20 percent evaluation for marked limited motion of the ankle. The Rating Schedule does not define the terms “moderate” or “marked,” and VA evaluates the evidence to arrive at decisions that are “equitable and just.” 38 C.F.R. § 4.6. VA has historically deemed moderate limitation of ankle motion to be present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and marked limitation of motion is present when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. There are two periods at issue here: from the initial filing of the Veteran’s claim for an increased evaluation on October 5, 2014 to his surgery on July 24, 2015 during which the Veteran received a 10 percent evaluation, and from September 1, 2015, the date his 100 percent evaluation expired following a period of convalescence from the July 2015 surgery. The Veteran’s right ankle disability was evaluated as 10 percent disabling during both periods. Resolving reasonable doubt in the Veteran’s favor, the Board concludes that a 20 percent evaluation is warranted form June 19, 2014, the earliest date for which the medical evidence of records documents a worsening of the Veteran’s right ankle disability. See 38 C.F.R. §§ 3.400(o)(2); 4.3, 4.6. A May 7, 2014 radiological examination of the Veteran’s right ankle documents complaints of pain; however, it showed not significant findings or changes when compared to a July 2009 radiological examination. June 19, 2014 VA treatment records document pian with dorsiflexion and plantar flexion, and the podiatrist performing the evaluation did not identify the point at which pain began. The podiatrist also noted pain on palpation of the Veteran’s right ankle and guarding on active range of motion, though the podiatrist did not note where guarding began. March 16, 2015 VA treatment records note diminished range of motion without providing measurements. While the loss in range of motion was described as “slight,” the podiatrist noted “tenderness” during range of motion testing and the Veteran received a series of Synvisc injections. November 18, 2014 VA treatment records document that the Veteran received a cam walking boot and ankle brace to alleviate pain in his right ankle. Despite the lack of detailed measurements for where pain and guarding began, the VA treatment records thoroughly document the Veteran’s significant pain that impacted dorsiflexion and plantar flexion. A 20 percent evaluation is warranted. A 20 percent evaluation is the maximum evaluation permitted under DC 5271. DC 5270 affords evaluations in excess of 20 percent for ankylosis of the ankle, and DC 5262 affords evaluations for malunion of the tibia and fibula. See 38 C.F.R. § 4.71a, DCs 5262 & 5270. The Board will not consider the application of these diagnostic codes, however, because the Veteran indicated that he would be satisfied with a 20 percent evaluation in his March 2016 notice of disagreement. With respect to the period from September 1, 2015, the Board likewise concludes that an evaluation of 20 percent is warranted for marked limited motion of the Veteran’s right ankle. A June 2, 2015 VA medical examination measured the Veteran’s range of motion as 0 to 10 degrees on dorsiflexion and 0 to 20 degrees on plantar flexion. The Veteran was unable to perform repetitive use testing did due to pain residual to his July 2015 surgery. The Veteran’s right ankle was not ankylosed. The examiner also noted reduced strength of 3 out of 5 on both plantar flexion and dorsiflexion. Out of a normal maximum plantar flexion of 45 degrees the Veteran retains only 20 degrees, and he retains only 10 degrees—or half of the normal range of motion—on dorsiflexion. Out of a total range of motion of the ankle of 65 degrees, the Veteran retains only 30 degrees of motion. Considering the persistent pain in the Veteran’s right ankle and noted weakness, the Board concludes that a 20 percent evaluation for marked limitation of motion of the right ankle is warranted. A 20 percent evaluation is the maximum evaluation available under DC 5271. As noted above, the Veteran stated in his March 2016 notice of disagreement that he would be satisfied with a 20 percent evaluation for his right ankle disability. The Board, therefore, need not discuss the application of diagnostic codes 5262 or 5270 for the period from September 1, 2015. 3. Entitlement to an Evaluation in Excess of 10 Percent for Surgical Scars on the Right Ankle and Right Middle Finger The Board notes that the rating criteria for evaluation of skin disorders were amended effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). These amendments only made non-substantive changes to the diagnostic code involved in this case. Consequently, the revised rating criteria do not require remand for the RO’s consideration in the first instance and do not affect the outcome of this case. DC 7804 provides a 20 percent evaluation for three or four scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. A 30 percent evaluation is warranted for five or more painful or unstable scars. An August 2015 VA medical examination identified two painful linear scars on the Veteran’s right upper extremity measuring 3.3 x 0.1 cm and 3.4 x 0.1 cm. The examination also identified one linear painful scar on the Veteran’s right ankle measuring 7.9 x 0.1 cm. This accords with the Veteran’s March 2016 Notice of Disagreement wherein the Veteran noted that he has four scars resulting from surgery on his right middle finger, two of which are painful and peel, and one painful scar on his right ankle. Because the evidence indicates that the Veteran has three scars that either painful or unstable, an evaluation of 20 percent is warranted. The record does not indicate that the Veteran has more than three painful or unstable scars; therefore, he is not entitled to a 30 percent evaluation pursuant to DC 7804. The Board has considered the Veteran’s disability under the other diagnostic codes pertaining to scars. The Veteran does not have scarring on his head, face, or neck to warrant consideration under DC 7800, and his scars are not shown to be deep (associated with underlying soft tissue damage) and do not cover sufficient area to warrant consideration under DCs 7801 or 7802. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel