Citation Nr: 18149845 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 18-15 377 DATE: November 14, 2018 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to an evaluation of 20 percent, but no higher for the service-connected right ankle disability (excepting a period of temporary total disability rating from December 19, 2014, through January 31, 2015) is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety, is remanded. FINDINGS OF FACT 1. The Veteran’s hearing loss is not severe enough to meet the definition of a hearing loss disability for compensation benefits under applicable VA laws. 2. Throughout the appeal period, excepting a period of temporary total disability rating from December 19, 2014, through January 31, 2015, the Veteran’s service-connected right ankle disability has manifested in marked limitation of range of motion. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for hearing loss have not been met. 38 U.S.C. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for an evaluation of 20 percent for the service-connected right ankle disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from October 1981 to October 1984, from October 2003 to August 2004, from August 2006 to January 2008, from December 2008 to February 2010, and from June 2011 to July 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2016 and March 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program. However, the Veteran submitted his opt-in paperwork after the RO had made a determination in his case and transferred the case to the Board. Accordingly, this appeal has been processed under the pre-existing legal framework. As an initial matter, the Board notes the Veteran filed claims for service connection for PTSD and for anxiety. As the Veteran lacks the medical knowledge to describe the universe of his claim, the Board has recharacterized his claims of service connection for individual mental health disorders as one of service connection for an acquired psychiatric disorder, to include PTSD and anxiety. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. Entitlement to service connection for hearing loss The Veteran contends that he has hearing loss secondary to his service-connected tinnitus. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including bilateral hearing loss, may be presumed to have been incurred in or aggravated by service if they manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). For purposes of the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The failure to meet these criteria at the time of a Veteran’s separation from active service is not necessarily a bar to service connection for hearing loss disability. A claimant “may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service.” Hensley, 5 Vet. App. at 160. The Veteran submitted an undated private audiogram, but it is unclear what the results indicate for which ear. Further, there is no examination report accompanying the audiogram graph indicating whether an audiologist administered the test and whether the test was a puretone audiometry test. The Veteran was afforded a VA audiological examination in January 2016, which returned the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 35 25 LEFT 10 15 15 30 25 The average puretone threshold was 19 decibels in the right ear and 21 decibels in the left ear. These results do not constitute hearing loss for VA purposes, as none of the auditory thresholds exceeds 40 decibels, and only one threshold in each ear exceeds 26 decibels. See 38 C.F.R. § 3.385. As these results do not meet the criteria for a diagnosis of hearing loss for VA benefits purposes in either ear, the Veteran’s service connection claim for hearing loss must be denied. See 38 C.F.R. §§ 3.102, 3.303; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (a current disability is the cornerstone of a claim for VA disability compensation). 2. Entitlement to an evaluation in excess of 10 percent for the service-connected right ankle disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities 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. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. §4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of sections 4.40 and 4.45, pertaining to functional impairment. DeLuca, 8 Vet. App. at 207-08. In applying these regulations, VA must obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups which resulted in functional loss. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, 8 Vet. App. at 207-08; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Finally, painful motion is an important factor of disability with any form of arthritis. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability; actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. The Veteran is currently in receipt of a 10 percent evaluation for his left ankle disability under DC 5271. These criteria assess limitation of motion of the ankle as either moderate, warranting a 10 percent rating, or marked, warranting a 20 percent rating. Higher ratings for the ankle are warranted only when the ankle is ankylosed. 38 C.F.R. § 4.71a, DC 5270. The words “moderate” and “marked,” as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. The use of these terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Veteran has undergone three VA examinations related to this disability during the appeal period. In August 2015, the Veteran reported that his right ankle had worsened progressively since he was first granted service connection, and required surgery in December 2014 (for which the Veteran was granted a temporary total disability rating for convalescence). The Veteran reported that he has continued pain and episodes of stiffness in the right ankle. The Veteran’s range of motion in the right ankle was measured as 15 degrees in dorsiflexion and 25 degrees in plantar flexion. The examiner noted that the limited range of motion contributed to functional loss in that the Veteran experienced pain on motion. After three repetitions, the range of motion was reduced to 10 degrees in dorsiflexion and 25 degrees in plantar flexion. The examiner noted that the right ankle disability could cause further functional limitation after repetitive use or during a flare-up. In April 2016, the Veteran reported that he experiences increased pain in his right ankle when walking, and that he took naproxen twice a day to manage the pain. He also reported flare-ups during which he is unable to walk long distances and has to avoid standing for prolonged periods. The Veteran’s range of motion in the right ankle was measured as 5 degrees in dorsiflexion and 20 degrees in plantar flexion. The examiner noted pain on examination. After three repetitions, the range of motion remained the same. The examiner noted that the right ankle disability could significantly limit functional ability after repetitive use or during a flare-up. The muscle strength in the right ankle was reduced to 4 out of 5 in both plantar flexion and dorsiflexion. The Veteran reported using a cane due to the ankle pain. In January 2017, the Veteran reported flare-ups during which he experiences severe pain in the right ankle and which cause difficulty walking. The Veteran’s range of motion in the right ankle was measured as 5 degrees in dorsiflexion and 15 degrees in plantar flexion. The examiner noted that the limited range of motion contributed to functional loss in that the Veteran had difficulty walking. After three repetitions, the range of motion remained the same. Pain was noted with range of motion testing and on weight-bearing. The examiner noted that there was no evidence of weakness or fatigability, but that the right ankle disability could significantly limit functional ability after repetitive use or during a flare-up. The muscle strength in the right ankle was reduced to 4 out of 5 in both plantar flexion and dorsiflexion. The Veteran reported using a brace regularly on his right ankle. The Veteran submitted some private treatment records relevant to this disability. A March 2016 treatment note describes swelling and pain, as well as increased pain with walking. The March 2016 record notes an antalgic gait and a range of motion with up to 10 degrees dorsiflexion and 15 degrees plantar flexion. The Veteran’s VA treatment records during the appeal period reflect that he was followed for his right ankle disability after the December 2014 surgery for which he was awarded a temporary total disability rating. These records reflect complaints of pain on dorsiflexion and plantar flexion and diagnosis of arthritis in the ankle. A March 2018 progress note contained range of motion testing of the right ankle, resulting in 10 degrees dorsiflexion and 30 degrees plantar flexion. After reviewing this evidence, the Board finds that an increase in evaluation of the Veteran’s right ankle disability is warranted. The Veteran’s range of motion in his right ankle was limited throughout the appeal period. Although in August 2015 it demonstrated greater flexibility, after just three repetitions, the Veteran lost 5 degrees in dorsiflexion. By the January 2017 VA examination, the limitation in range of motion can be described as marked, with 5 degrees in dorsiflexion and 15 degrees in plantar flexion. Although the range of motion improved slightly in the March 2018 VA treatment visit, throughout the appeal period, the Veteran described flare-ups during which walking became difficult. He also reported the regular use of a cane and a brace to assist him in walking. Given the evidence indicating limitation of functional ability, the Board finds the Veteran meets the criteria for an evaluation of 20 percent under DC 5271. None of the competent evidence of record shows ankylosis of the ankle. Accordingly, a rating in excess of 20 percent is not warranted. REASONS FOR REMAND 1. The issues of entitlement to service connection for a low back disability, a left ankle disability, and a cervical spine disability is remanded. The Veteran indicated in a May 2018 supplemental substantive appeal that he receives disability compensation from the Social Security Administration (SSA) for his low back disability, as well as his left ankle disability, acquired psychiatric disorder, and cervical spine disability. When VA has notice that the Veteran may be receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based. See Hayes v. Brown, 9 Vet. App. 67 (1996). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and anxiety, is remanded. The Veteran attended a VA psychiatric examination in April 2016, at which the examiner diagnosed an unspecified anxiety disorder. However, the examiner only addressed whether this disorder was related to environmental exposures in the Southwest Asia theater of operations, and not whether it is related to the Veteran’s other military service. Therefore, a new examination is necessary to obtain an adequate opinion addressing direct service connection. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide an examination, it must provide an adequate one). The Board also notes that other psychiatric diagnoses are of record. On remand, the examiner should address all diagnoses in the record. See generally Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The matters are REMANDED for the following action: 1. Obtain the Social Security Administration records pertinent to the Veteran’s claim for disability benefits, including medical records relied upon to make any related determination, and associate these with the claims file. All efforts to obtain these records should be fully documented, and Social Security Administration should provide a negative response if these records are not available. 2. Then, schedule the Veteran for an examination with an appropriate clinician to determine whether any psychiatric disorder is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders currently found. For each psychiatric disorder identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disorder began in or is otherwise caused by the Veteran’s active service. The examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record, including the Veteran’s private psychiatric treatment records.   All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel