Citation Nr: 18151785 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-08 464 DATE: November 20, 2018 ORDER A 40 percent disability rating for degenerative joint disease of the left ankle, residual of fracture, is restored effective July 1, 2014. Entitlement to a rating in excess of 40 percent for degenerative joint disease of the left ankle, residual of fracture, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The reduction of the Veteran’s rating for his service-connected degenerative joint disease of the left ankle was not based on improvement in the Veteran’s left ankle disability under the ordinary conditions of life and work. 2. The Veteran’s left ankle disability has been assigned the maximum 40 percent rating for a disability of the ankle under the regular schedular criteria and his left ankle disability does not involve a level of impairment comparable to amputation with prosthesis. CONCLUSIONS OF LAW 1. The reduction of the rating for the left ankle disability from 40 percent to 10 percent, effective July 1, 2014, was improper, and restoration of the 40 percent disability rating is warranted. 38 U.S.C. §§ 1155, 5107, 5112 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2017). 2. The criteria for a rating in excess of 40 percent for the Veteran’s left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.46, 4.68, 4.71a, Diagnostic Codes 5270-5056 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1976 to December 1977. In an October 2018 hearing confirmation correspondence, the Veteran withdrew his request for BVA hearing and requested that his claims be decided based on the evidence already of record. See October 2018 hearing related correspondence. A claim stemming from a rating reduction action is a claim for restoration of the prior rating and, typically, does not contemplate a claim for an increased rating. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). However, in this case, the April 2014 rating decision was issued subsequent to the Veteran’s January 2011 claim for entitlement to an increased disability rating for his left ankle disability. Therefore, the Veteran’s appeal from the rating action has brought before the Board the issue of the propriety of the rating reduction, as well as the claim for an increased rating for the left ankle disability. The Board takes jurisdiction of the TDIU claim as inextricably intertwined with the claim for increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran’s claim for PTSD with anxiety and depression has been broadened to an acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Rating Reduction A Veteran’s disability rating may not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When a reduction is effectuated without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). The provisions of 38 C.F.R. §§ 3.344(a) and (b), which govern the reduction of ratings in effect for five years or more, do not apply in this case because the disability evaluation reduced by the April 2014 rating decision had been in effect for less than 5 years. A reduction in rating is warranted where re-examinations disclose a physical improvement. 38 C.F.R. § 3.344(c). Before implementing such a reduction, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in the service-connected disability has actually occurred and that such improvement actually reflects an improvement in the claimant’s ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13); 38 C.F.R. § 3.344(c). Left ankle In a February 2012 rating decision, the AOJ granted an increased rating from 10 percent to 40 percent for degenerative disease of the left ankle, residual of fracture, effective January 21, 2011. See February 2012 rating decision. A September 2013 rating decision proposed to reduce the Veteran’s rating for his left ankle from 40 percent to 10 percent based on the results from his July 2013 VA examination. A March 2014 rating decision indicated the Veteran did not appear for his scheduled VA examination and reduced the Veteran’s left ankle disability rating from 40 percent to 10 percent, effective June 1, 2014. Thereafter, the Veteran was rescheduled for an April 2014 VA examination and the AOJ reduced the Veteran’s left ankle rating to from 40 percent to 10 percent, effective July 1, 2014. See April 2014 rating decision. As noted, the provisions of 38 C.F.R. §§ 3.344(a) and (b), which govern the reduction of ratings in effect for five years or more, do not apply in this case because the disability evaluation reduced by the April 2014 rating decision had been in effect for less than 5 years. The Board must focus on the evidence available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). In addition, it must be determined that an improvement in a disability had actually occurred; and that such improvement actually reflected an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993). The Board must consider the entire medical history and apply the preponderance of the evidence standard in its determination. After reviewing the evidence of record, the Board finds that there is competent and credible evidence that the Veteran’s left ankle disability had not improved at the time of the April 2014 rating decision. The Board is mindful that, in reducing the disability rating from 40 percent to 10 percent, the AOJ considered the results of the Veteran’s April 2014 VA examination, which tended to show that the Veteran’s service-connected left ankle disability did not meet the criteria for a 40 percent disability rating. Crucially, however, the AOJ failed to make a specific determination that there was an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. After considering the Veteran’s entire medical history, a preponderance of the evidence does not show a material improvement in the service-connected left ankle disability. First, the evidence of record indicates that the Veteran has continued to report that his service-connected left ankle disability has caused him considerable pain. See December 2011, July 2013, and April 2014 VA examination reports. Notably, the Veteran has consistently reported worsening symptoms. Id. Further, the Veteran continues to report that his service-connected left ankle disability affects his ability to complete his activities of daily living, especially walking and weight-bearing activities. See December 2011, July 2013, and April 2014 VA examination reports. Finally, the Board notes that the VA examination reports of record have noted increased functional loss, impairment, and/or limitation of range of motion of the left ankle. Significantly, the December 2011 VA examination report indicated that the Veteran did not report that flare-ups impacted the function of the left ankle. Additionally, the December 2011 VA examination report noted the Veteran’s left ankle had functional loss, functional impairment, and/or additional limitation of range of motion of the ankle after repetitive use, described as less movement than normal and pain on movement. Thereafter, upon physical examination in April 2014, the Veteran reported that flare-ups impacted the function of his left ankle. Further, the April 2014 VA examination report indicated that the Veteran’s left ankle had functional loss, functional impairment and/or additional limitation of range of motion of the ankle after repetitive use, described as less movement than normal, weakened movement, excess fatiguability, pain on movement, swelling, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. As VA has failed to meet its burden to demonstrate actual improvement of the Veteran’s left ankle resulting in sustained improvement in his ability to function under the ordinary conditions of life and work, the Board finds the restoration of a 40 percent disability rating is warranted. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The United States Court of Appeals for Veterans Claims (Court) also has held that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.” Id., quoting 38 C.F.R. § 4.40. Left ankle The Veteran filed a January 2011claim for increased rating for left ankle disability. See VA Form 21-4138. The Veteran is currently assigned a 40 percent rating for a service-connected left ankle disability under Diagnostic Code 5271. Musculoskeletal disabilities of the ankle are rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274. Therefore, the Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Under Diagnostic Code 5270, a minimum 20 percent rating is assigned for ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle where plantar flexion is fixed between 30 and 40 degrees, or dorsiflexion is fixed between 0 and 10 degrees. A maximum 40 percent rating is warranted where plantar flexion is fixed at more than 40 degrees, or where dorsiflexion is fixed at more than 10 degrees with abduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s service-connected left ankle disability. Upon December 2011, July 2013, and April 2014 VA examinations, the Veteran did not have localized tenderness or pain on palpation of joints/soft tissue of either ankle. The Veteran did now have nor has he ever had “shin splints”, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy (astragalectomy). He has not had a total ankle joint replacement and has not had arthroscopic or other ankle surgery. The Veteran did not have functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis due to his left ankle disability. As noted above, the Veteran is currently in receipt of the maximum 40 percent rating for ankylosis of the left ankle. Loss of use of the foot is not shown on multiple VA examinations. See December 2011, July 2013, and April 2014 VA examination reports. Thus, a basis for a higher rating is not shown. In DeLuca, supra, the Court held that VA’s review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. See 38 C.F.R. §§ 4.40, 4.45, 4.59. However, as the Veteran is receiving the maximum schedular rating allowable under the applicable diagnostic code, the aforementioned provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration. See Johnston v. Brown, 10 Vet. App. at 80, 85 (1997) (consideration of 4.40 and 4.45 is unnecessary where an appellant is in receipt of the maximum rating for limitation of motion). The Board notes that the Veteran is not entitled to an increased disability rating under Diagnostic Code 5056 because he has not had left ankle replacement. Additionally, as addressed below, at no point has any, private or VA medical professional found the functioning of the Veteran’s left ankle to be so diminished that amputation and use of prosthesis would equally serve him. See December 2011, July 2013, and April 2014 VA examination reports. Moreover, a disability rating in excess of 40 percent is not feasible, because under the provisions of 38 C.F.R. § 4.6, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. Thus, any further consideration under other Rating Schedule diagnostic codes for evaluation of the service-connected left ankle disability is not warranted. Notably, none of the diagnostic codes for evaluation of unilateral foot disability would provide for an evaluation in excess of 40 percent. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5283 (2017). Accordingly, the 40 percent rating assigned to the left ankle disability is the maximum schedular rating allowable in this matter. Because the Veteran is already receiving the maximum allowable rating under Diagnostic Code 5270, and because there are no other relevant diagnostic codes which would not result in pyramiding, the evaluation in excess of 40 percent for the Veteran’s left ankle disability is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent for residuals of a left ankle disability. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND 1. Acquired psychiatric disability The Veteran contends that he has PTSD with anxiety and depression as a result of witnessing a drill sergeant get shot and die and also witnessing a soldier get run over by a tank and killed in service. See January 2016 statement in support of claim for PTSD. In a May 2015 VA mental health note, VA psychiatrist, Dr. R.H. indicated the Veteran had diagnoses of recurrent major depression and chronic PTSD. To date, a VA psychiatric examination has not been afforded to the Veteran. Thus, remand is warranted. 2. TDIU The Veteran reported that his ankle injury, anxiety, and PTSD prevent him from securing or following any substantially gainful occupation. See July 2015 VA Form 21-8940. Further, in a December 2016 private medical opinion, Dr. R.H. opined that the Veteran’s significant depression and complicating pain issues in the context of PTSD make it highly unlikely that the Veteran could function in the work environment of any type. As such, the Board finds that the TDIU claim is inextricably intertwined with the claim for service connection for an acquired psychiatric disability. Thus, the matter is also remanded. The matters are REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed acquired psychiatric disability. The examiner is requested to review the claims file, to include this remand. Following review of the claims file, the examiner should provide an opinion on the following: (a) The examiner should identify whether the Veteran has a diagnosed psychiatric disability, to include PTSD, depression, and anxiety. The examiner should consider the May 2015 VA mental health note by VA psychiatrist, Dr. R.H., indicating he had diagnoses of recurrent major depression and chronic PTSD. (b) If PTSD is diagnosed, the examiner should specifically determine whether it is at least as likely as not (a 50 percent or greater possibility) that the Veteran’s PTSD is related to his military service. If a diagnosis of PTSD is deemed appropriate, the examiner must explain how the diagnostic criteria of the DSM-5 are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and the stressor(s). The examiner must state whether the claimed stressor(s) is adequate to support a diagnosis of PTSD. If a diagnosis of PTSD is not deemed appropriate, the examiner must specifically explain this finding in light of any previous diagnosis of PTSD of record. (c) For each psychiatric diagnosis provided other than PTSD, to include anxiety and/or depression, the examiner should opine as to whether it is at least as likely as not related to service or any incident in service. If a diagnosis of anxiety and/or depression is not deemed appropriate, the examiner must specifically explain this finding in light of any previous diagnosis of record. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. If the examiner is unable to offer any requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Ensure completion of the foregoing and any other development deemed necessary, to include any appropriate development for the TDIU claim, then readjudicate the Veteran’s claims. If any claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Schick, Associate Counsel