Citation Nr: 18156570 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 10-31 829 DATE: December 11, 2018 ORDER New and material evidence has been submitted and the claim to reopen service connection for a left knee disability is granted. Beginning January 27, 2016, an initial increased rating of 40 percent for the left sacroiliac joint (back/lumbar spine disability) is granted. For the period prior to May 12, 2015, an increased rating in excess of 10 percent, for a left ankle disability, is denied. For the period beginning May 12, 2015, a 10 percent disability rating for a left ankle disability, is granted. An increased rating in excess of 50 percent for the period prior to May 15, 2017, and in excess of 70 percent for the period beginning May 15, 2017, for post-traumatic stress disorder (PTSD), is denied. For the period prior to May 15, 2017, entitlement to a total disability rating based on an individual unemployability (TDIU) is denied. REMANDED The claim for service connection for a bilateral thigh disability is remanded. The claim for service connection for a left knee disability is remanded. The claim for direct or secondary service connection for a left shin disability is remanded. FINDINGS OF FACT 1. New and material evidence was received since the November 2006 decision that denied service connection for a left knee disability. 2. For the period prior to January 27, 2016, the low back disability was manifested by limitation of forward flexion of the lumbar spine to 90 degrees; but for the period beginning January 27, 2016, the lumbar spine was limited to 10 degrees of flexion. 3. For the period prior to May 12, 2015, the Veteran’s left ankle disability more closely approximates a disability manifested by moderate limitation of motion. 4. Resolving all reasonable doubt in favor of the Veteran, for the period beginning May 12, 2015, the left ankle disability more closely approximates a disability manifested by moderate limitation of motion. 5. For the period prior to May 15, 2017, the Veteran’s PTSD more closely approximates a disability manifested by occupational and social impairment with reduced reliability and productivity; and for the period beginning May 15, 2017, the Veteran’s PTSD symptoms more closely approximate an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 6. For the period prior to May 15, 2017, the evidence has not shown that the Veteran was unable to maintain and secure substantially gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria to reopen service connection for a left knee disability have been met. 38 U.S.C. §§ 5108, 7104 (West 2012); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2017). 2. The criteria for a 40 percent disability rating for a lumbar spine disability have been met for the period beginning January 27, 2016. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5236 (2017). 3. For the period prior to May 12, 2015, the criteria for an increased rating in excess of 10 percent, for a left ankle disability, have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.27, 4.40, 4.45, 4.71a, DCs 5024, 5271 (2017). 4. For the period beginning May 12, 2015, the criteria for a 10 percent rating disability, for a left ankle disability, have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.3, 4.6, 4.7, 4.27, 4.40, 4.45, 4.71a, DCs 5003, 5024, 5271 (2017). 5. The criteria for an increased rating in excess of 50 percent for the period prior to May 15, 2017, and in excess of 70 percent for the period beginning May 15, 2017, for PTSD, have not been met. 38 U.S.C § 1155 (West 2012); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, DC 9411 (2017). 6. For the period prior to May 15, 2017, the criteria for entitlement to a total disability rating based on an individual unemployability (TDIU) have not been met. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1997 to June 2001. This appeal comes before the Board of Veterans’ Appeals (Board) from February 2009, February 2011, February 2014 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The February 2009 rating decision denied the service connection claims for shin and bilateral hip disabilities, as well as the claim to reopen service connection for a left knee disability. The February 2011 rating decision granted service connection for PTSD, at a 30 percent disability rating, effective August 13, 2009; but denied entitlement to a TDIU. The February 2014 rating decision assigned a non-compensable, zero percent rating for the lower back disability, after the Board granted this service connection claim. The May 2015 rating decision, upon finding clear and unmistakable error for failure to assign a separate evaluation for the left ankle disability, assigned a 10 percent rating, effective June 7, 2001, and a non-compensable, zero percent rating, effective May 12, 2015. In a November 2013 rating decision, the RO increased the rating disability for PTSD to 50 percent disabling, effective August 13, 2009. In February 2014, the Board remanded the appeal to the RO for further evidentiary development. Thereafter, in a March 2018 rating decision, the RO further increased the rating disability for PTSD to 70 percent disabling, effective May 15, 2017; and granted entitlement to a TDIU, effective May 15, 2017. However, since these are not representative of the total grant of the benefits sought on appeal, both issues remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). New and Material Evidence to Reopen Left Knee Service Connection Claim VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a). That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last, final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 510 – 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s service connection claim for a left knee disability was initially denied in a July 2005 decision. In this decision, the RO denied the claim because it determined that the Veteran’s left knee pain did not constitute a disability. Since the Veteran did not perfect an appeal of the decision within one year, this decision became final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Nonetheless, the left knee disability claim was last denied in a November 2006 decision because the RO determined that new and material evidence related to an unestablished fact necessary to substantiate the claim had not been submitted. However, the Veteran did not perfect an appeal of this decision within one year, and thus, this decision also became final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Evidence received since the last, final November 2006 rating decision includes, and is not limited to, November 2008 and May 2015 VA examination reports that reflect evidence of left knee pain and instability, which now constitutes a disability due to a new development in case law. Until recently, pain alone, without a diagnosis or identifiable underlying malady or condition, did not in and of itself constitute a disability for which service connection could be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). However, in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. In this regard, the November 2008 and May 2015 VA examination reports reflect that the Veteran’s left knee pain results in functional impairment, including and not limited to, painful motion, increased with extended walking, and abnormal range of motion. This evidence is new as it was not previously of record. It is also material because it is medical evidence demonstrating a current left knee disability, and specifically, one of the previously unestablished, unproven elements from the July 2005 and November 2006 rating decisions. The Board recognizes that this additional piece of evidence is presumed to be credible for the purpose of reopening the claims. Justus, 3 Vet. App. at 512 – 513. Therefore, this evidence, when considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, since new and material evidence has been received, the service connection claim for a left knee disability is reopened. Additional development is required, however, prior to a decision on the matter. The development is described in the Remand section below. Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). 1. Musculoskeletal Disabilities: Lower Back & Left Ankle Disabilities In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 (2017). These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206 – 07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011) A. Lower Back/Lumbar Spine Disability The Veteran has been assigned a non-compensable (zero percent) rating for subluxation of the left sacroiliac joint (lower back condition), pursuant to 38 C.F.R. 4.71a, DC 5236 (2017). He asserts entitlement to a compensable rating for the entire appellate period. DC 5236 is the diagnostic code for sacroiliac injury and weakness of the spine, which is rated under the criteria for the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 38 C.F.R. § 4.71a, DC 5236 (2017). Under this rating criteria, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar (lumbar) spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. Note 1 of this General Rating Formula for Diseases and Injuries of the Spine provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. In a November 2008 VA examination for the lumbar spine, the Veteran complained of pain in the lower back, which he described as sharp pain, and it severity, moderate. He also reported having radiating pain, which he described as a sharp radiating pain, as well as severe flare-ups that occurred every 2 to 3 weeks, with the duration of the flare-ups lasting 1 -2 days. He indicated that his limitations of walking, specifically, only ¼ mile, was the functional impairment of his lumbar spine disability. On range of motion testing, forward flexion was at 90 degrees, with no pain on active or passive motion, or after repetitive use. Additionally, there was no additional loss of motion on repetitive use. A June 2013 VA examination indicates that the Veteran did not report any flare-ups that impacted the function of his lumbar spine. On range of motion testing, forward flexion was at least 90 degrees, with no objective evidence of painful motion. There was no evidence of additional limitation in range of motion of the lumbar spine; nor was there any indication that the Veteran had any functional loss and/or functional impairment of the lumbar spine. The VA examination report also reflects that the Veteran occasionally uses a cane, as an assistive device, which he purchased to use whenever he has back pain (or knee or hip pain). However, post-service treatment records indicate that since this last, June 2013 VA examination, the Veteran’s lumbar spine disability has worsened. Specifically, a January 2016 chiropractor consult note reflects that the Veteran sought treatment for lumbar spine pain, which he described as constant, with an average pain intensity of 6 out 10, and at the worst, a 10 out of 10. On range of motion testing, forward flexion of the lumbar spine was at 10 degrees, with pain, and the examiner determined, in his findings, that there was no significant motion with flexion or extension. In a March 2017 primary care note, the Veteran reported that his chronic back pain was getting worse, compared to his last visit at a primary care visit, and further, explained that the pain was not well controlled most days, on his current medication regime. Summarily, the Board finds that the evidence of record does not support a compensable rating for the lumbar spine disability at any time prior to the period of January 27, 2016, as treatment records and VA examination reports consistently reflect that the limitation of motion for forward flexion of the lower back was at 90 degrees. Additionally, the evidence of record has not shown that the Veteran has muscle spasm, guarding, or localized tenderness, not resulting in abnormal gait or spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. Thus, a compensable rating of at least 10 percent is not warranted. Nonetheless, for the period beginning January 27, 2016, forward flexion of the lumbar spine had decreased to 10 degrees. Thus, the Board finds that an increased rating of no greater than 40 percent is warranted, effective January 27, 2016. 38 C.F.R. § 3.400(o)(2) (2017) (providing that when medical records indicate an increase in a disability, receipt of such medical records may be used to establish an effective date for retroactive benefits based on facts found of an increase in a disability, only if a complete claim or intent to file a claim for an increase is received within one year of the date of the report of examination). However, the Board additionally notes that there is no evidence of unfavorable ankylosis of the lumbar spine, and thus, a 50 percent rating is not warranted. The Board has considered the applicability of the DeLuca criteria for a higher rating, prior to and beginning January 27, 2016. However, a higher rating than what has already been assigned is not warranted based on functional loss due to pain, weakness, premature or excess fatigability, and incoordination causing additional disability beyond that reflected in range of motion measurements. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206 – 07. Although there was evidence of severe flare-ups that occurred every 2 to 3 weeks, with the duration of the flare-ups lasting 1 – 2 days, on range of motion testing, there was no evidence of contributing factors of pain, weakness, fatigability and/or incoordination; nor was there any evidence of additional limitation of functional ability of the lumbar spine during flare-ups or repeated used over time, for the period prior to January 27, 2016. Thus, a 10 percent rating disability is not warranted, based on the DeLuca factors, for this period. For the period beginning January 27, 2016, even when considering functional loss, the low back disability does not approximate one manifested by unfavorable ankylosis of the entire lumbar spine. Finally, the Board has also considered whether separate, additional ratings are applicable to the Veteran’s lumbar spine disability, at any time during the appellate period. However, the evidence of record has not shown that he has been diagnosed with any other related lumbar spine disabilities, including neurologic abnormalities, such as, for example, radiculopathy, or a bowel or bladder impairment, to warrant separate, additional ratings. Therefore, based on the foregoing, an increased rating, but not in excess of 40 percent, is warranted for the lumbar spine disability, effective January 27, 2016. B. Left Ankle Disability The Veteran has been assigned a 10 percent disability rating for the period prior to May 12, 2015, and a zero, non-compensable rating for the period beginning May 12, 2015, for his service-connected left ankle tendonitis, under DC 5271-5024. As applied here, hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27 (2017). In this particular case, the first set of four digits, 5271, is the diagnostic code for limited motion of the ankle; whereas the second set of four digits after the hyphen, 5024, is the diagnostic code used to rate the residuals of tenosynovitis. Id. Diseases that are rated under DC 5024, are to be rated on limitation of motion of the affected parts as degenerative arthritis, under DC 5003. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a (2017). When, however, the limitation of motion is non-compensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings will not be combined with ratings based on limitation of motion. Id. Under DC 5271, limited motion of the ankle, moderate limitation of motion of the ankle warrants a 10 percent disability rating, and marked limitation of motion of the ankle warrants a 20 percent disability rating; a 20 percent evaluation represents the maximum rating available under DC 5271. 38 C.F.R. § 4.71a, DC 5271. The normal range of motion of the ankle is from zero to 45 degrees of plantar flexion, and from zero to 20 degrees of dorsiflexion. 38 C.F.R. § 4.71a, Plate II (2017). The terms “slight,” “moderate,” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just,” and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6 (2017). i. Period Prior to May 12, 2015 As noted above, the Veteran has been assigned a 10 percent rating for the period prior to May 12, 2015. Treatment records reflect that the Veteran underwent range of motion testing for the ankle in August 2009, in which dorsiflexion of the ankle was no greater than 10 degrees; and plantar flexion was no greater than 30 degrees, but no signs of stiffness, effusion, tenderness, or swelling of the extremities were found; and the functional impairment of his left ankle disability was described as having limitations and/or difficulty with standing, walking and running. Treatment records additionally reflect a diagnosis of mild tenosynovitis of the posterior tibial tendon; and mild inflammation of one of the left ankle tendons, although the tendons were intact. A November 2008 VA examination for the left ankle described the functional limitation on the left ankle as standing limitations, in which he is able to stand for 15 - 30 minutes; as well as walking limitations, in which he is able to walk 1/4 mile. The VA examination report additionally reflects instability of left ankle; pain; stiffness; and weakness; but no episodes of dislocation or subluxation. The VA examiner also noted repeated effusion of left ankle, as well as flare-ups, which were severe and occurring every 2 to 3 weeks. The Veteran reported that he loses 80 percent of motion during a flare-up for about 1 - 2 days, and that inflammation, including warmth, swelling and tenderness occurs. On range of motion testing of the left ankle, dorsiflexion was at 20 degrees, with no additional limitation of motion on repetitive use; and plantar flexion was at 45 degrees, with no additional limitation of motion on repetitive use. After review of all pertinent evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the period prior to May 12, 2015. As noted above, treatment records reflect that the Veteran’s tenosynovitis was mild, with mild inflammation of one of the left ankle tendons. On range of motion testing, the November 2008 VA examination report determined that range of motion of the left ankle was normal. Despite signs of warmth, swelling and tenderness, however, the Board notes the VA examiner broadly indicated that these symptoms were applicable to the ankle, knee, and hip, and thus, it was not clear whether all or some of these symptoms were attributable to the left ankle. Nonetheless, treatment records, subsequent to this VA examination, indicated that there were no signs of stiffness, effusion, tenderness, or swelling of the extremities were found. Although one treatment record indicates that dorsiflexion of the left ankle was at 20 degrees, and plantar flexion was at 45 degrees, overall, the symptoms and manifestations of the Veteran’s left ankle disability, as reflected in his treatment record and VA examination, do not present a severity that can be construed as marked limitation of motion, to warrant a 20 percent disability rating. The Board has considered the applicability of the DeLuca criteria for a higher rating. However, a rating in excess of 10 percent is not warranted based on functional loss due to pain, weakness, premature or excess fatigability, and incoordination causing additional disability beyond that reflected in range of motion measurements. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206 – 07. Although there was evidence of flare-ups of the left ankle, which has been contemplated and accounted for in the 10 percent rating already assigned, the evidence of record has not shown contributing factors of pain, weakness, fatigability and/or incoordination on range of motion testing; nor is there any evidence of additional limitation of functional ability of the left ankle during flare-ups or repeated used over time. Thus, a rating disability in excess of 10 percent is not warranted, based on the DeLuca factors, for the period prior to May 12, 2015. ii. Period Beginning May 12, 2015 For the period beginning May 12, 2015, the Veteran has been assigned a non-compensable rating for the left ankle disability. During this period, there were no pertinent treatment records with sufficient detail to describe the severity and/or range of motion for the Veteran’s left ankle disability. However, a May 2015 VA examination for the left ankle reflects that the Veteran reported having flare-ups in the left ankle, which he described as an inability to bear weight on his ankle. He also indicated that pain with walking was an additional contributing factor of his disability. On range of motion testing, the left ankle was normal, with dorsiflexion of the left ankle at 20 degrees, and plantar flexion at 45 degrees. No pain was noted on examination, and the Veteran was able to perform repetitive use testing with at least 3 repetitions. Furthermore, the VA examiner indicated that she was unable to state, without mere speculation, whether pain, weakness, fatigability or incoordination significantly limited functional ability during flare-up, as the Veteran was not examined during a flare-up. A May 2017 VA examination for the left ankle reflects that the Veteran reported having muscle spasms and ankle rolls when he walked for extended periods of time. But the VA examiner noted that did not report any flare-ups, functional loss, or functional impairment of the left ankle at this examination. On range of motion testing, the left ankle was normal, with dorsiflexion of the left ankle at 20 degrees, and plantar flexion at 45 degrees. No pain was noted on examination; and the Veteran was able to perform repetitive use testing with at least 3 repetitions. Nonetheless, the VA examiner noted that there was objective evidence of localized tenderness or pain on palpation of the left ankle or associated soft tissue, which he described as verbal pain below the medial malleolus without withdrawal, which was mild in severity and related to tendonitis. The VA examination report further reflects that left ankle instability or dislocation was suspected, but that there was no laxity compared with the opposite side, on anterior drawer testing; and no laxity compared with the opposite side, on talar tilt testing. In a September 2017 response to the findings of the May 2017 VA examination report, the Veteran indicated that he reported muscle spasms and ankle rolls when he walks for extended periods of time; and that the VA examiner noted objective evidence of localized tenderness or pain on palpation of the joint or associated tissue; and additionally, that ankle instability or dislocation was suspected. Summarily, he asserted that these factors are supportive of a 10 percent disability rating. After a review of all probative evidence of record, the Board finds that the evidence is in at least relative equipoise, and resolving all reasonable doubt in favor of the Veteran, a compensable rating of no higher than 10 percent is warranted for the period beginning May 12, 2015. Overall, the probative evidence of record for this period, including and not limited to, the Veteran’s competent, credible statements about the symptoms and manifestations of his left ankle disability, as well as VA examinations, reflects that the Veteran’s left ankle disability is characteristic of a limitation of motion that is objectively confirmed by muscle spasms and satisfactory evidence of painful motion; as well as symptoms and manifestations of instability, flare-ups, and functional impairment, including and not limited to, pain with walking. Even when considering functional impairment, a 20 percent is not warranted for any period on appeal as the disability has never approximated one demonstrated by marked limitation of motion. Additionally, for both appellate periods, the Board has considered whether separate, additional ratings are available for the Veteran’s left ankle disability. However, the evidence of record has not shown that the Veteran has ankylosis of the left ankle; ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus; or an astragalectomy. Therefore, separate, additional ratings under DCs 5270, 5272, 5273, or 5274 are not warranted. Thus, in summary, for the period prior to May 12, 2015, an increased rating in excess of 10 percent for the left ankle disability is denied; whereas, for the period beginning May 12, 2015, an increased rating disability of 10 percent is granted. 2. PTSD The Veteran’s PTSD has been rated at 50 percent disabling for the period prior to May 15, 2017, and at 70 percent for the period beginning May 15, 2017. The criteria for evaluating PTSD is found in the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130, DC 9411 (2017). A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands, impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and, memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442 – 44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a) (2017). A. Period Prior to May 15, 2017 For the period prior to May 15, 2017, the Veteran has been assigned a 50 percent disability rating for PTSD. The Board finds that an occupational impairment with deficiencies in most areas, including work, school, family relations, judgment, thinking or mood is not sufficiently shown to warrant a 70 percent rating disability for the period prior to May 15, 2017. Post-service treatment records, as well as April 2013 buddy statements from his daughter’s mother, K.S., and his ex-wife/wife, J.G., reflect symptoms and manifestations of depressed mood; anxiety; panic attacks; disturbances of motivation and mood; irritability; sleep disturbances, including nightmares about the war; and hypervigilance. An August 2010 VA examination for PTSD, reflecting a diagnosis of PTSD, indicates that the Veteran has PTSD symptoms of depressed mood; isolation; mood swings; recurrent, distressing dreams of in-service events; marked, diminished interest or participation in significant activities; irritability or outbursts of anger; and hypervigilance. The examination did not show any evidence of PTSD symptoms of much greater severity, which are typically associated with a 70 percent rating, such as, for example, suicidal or homicidal ideation; hallucinations; impaired impulse control, such as unprovoked irritability with periods of acts of violence; disorientation; or persistent danger of hurting self or others. The VA examination report indicates that he has no problematic effects/history of alcohol or substance use; no history of violence or assault; his appearance was clean, and he was appropriately dressed; with unremarkable psychomotor activity. A June 2013 VA examination also does not show any evidence of PTSD symptoms that are reflective of an occupational and social impairment in most areas such as work, school, family relations, judgment, thinking, or mood, which are typically associated with a 70 percent rating. The Veteran reported that he had shared custody of his daughter, of whom he spends a lot of time with; and that he mainly sees his dad and ex-wife, even though he did not have any friends. Further, he denied having any legal and/or behavioral issues, other than a custody issue with his ex-wife; and he denied any history of substance abuse. The VA examiner also diagnosed the Veteran with non-specified personality disorder, with narcissistic, anti-social and borderline traits. The VA examiner also determined that the symptoms that are applicable to the Veteran’s mental disabilities, including PTSD and non-specified personality disorder, include depressed mood; anxiety; panic attacks occurring weekly or less often; and chronic sleep impairment. However, there was no evidence of PTSD symptoms of greater severity, such as, for example, impaired judgment; impaired abstract thinking; spatial disorientation; grossly inappropriate behavior; persistent danger of hurting himself or others; neglect of personal appearance or hygiene; intermittent inability to perform activities of daily living; or disorientation to place or time. Summarily, the evidence fails to show deficiencies in most areas due to symptoms similar or equivalent in severity to those listed in the rating criteria for a 70 percent rating. See Vazquez-Claudio v. Shinseki, 713 F. 3d 112, 118 (Fed. Cir. 2013) (holding that a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation). Therefore, based on the foregoing reasons, an increased rating in excess of 50 percent is not warranted for PTSD, for the period prior to May 15, 2017. Period Beginning May 15, 2017 For the period beginning May 15, 2017, the Veteran has been assigned a 70 percent disability rating for PTSD. The Board finds that while the Veteran has significant occupational and social impairment due to service-connected acquired psychiatric disability, total social and occupational impairment is not shown and thus the criteria for a 100 percent evaluation have not been met. For this appellate period, although post-service treatment records provide limited details about the symptoms and manifestations of his mental disability, they reflect that the Veteran manifested symptoms of panic attacks, anxiousness; and anxiety. The May 2017 VA examination, reflecting a diagnosis of PTSD, indicates that the Veteran has PTSD symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting ot stressful circumstances, including work or work-like setting; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; and neglect of personal appearance and hygiene. However, the examination did not show that the psychiatric disability resulted in total social impairment. Rather, its shows that the Veteran has denied having a history of substance abuse, as well as engaging in any physical altercations with others, despite having road rage, where he screams at other drivers in traffic. Additionally, the VA examination shows that he has re-married his ex-wife in 2017, despite maintaining an “on and off” relationship; he has never physically abused his wife; he has never harmed his dogs, although they hide under the bed when he yells and often destroys things; and that he has custody of his five-year old daughter approximately 70 percent of the time, in which he spends time with her frequently, has never been abusive towards her, and does not lose his temper in front of her. Summarily, manifestations and symptoms typically associated with a 100 percent rating such as, gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to place or time; or a persistent danger of hurting self or others were not present. Therefore, for the foregoing reasons, an increased rating in excess of 70 percent, for the period beginning May 15, 2017, is not warranted for PTSD. TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2017). A finding of total disability is appropriate when there is any present impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2017). TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2017). In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). Although a March 2018 rating decision granted entitlement to a TDIU, effective May 15, 2017, the Veteran nonetheless asserts that he is also entitled to a TDIU for the period prior to May 15, 2017. The Veteran is service-connected for PTSD, at a 50 percent disability rating, effective August 13, 2009 to May 14, 2017, and at a 70 percent disability rating, effective May 15, 2017; bilateral pes planus, at a 30 percent disability rating, effective May 16, 2006; left foot hallux valgus, at a non-compensable rating, effective June 7, 2001; subluxation of the left sacroiliac joint, at a zero, non-compensable rating, effective August 19, 2008; and left ankle tendonitis, at a 10 percent disability rating, effective June 7, 2001 to May 11, 2015; and a zero percent, non-compensable rating effective May 12, 2015. Thus, for the period prior to May 15, 2017, the combined disability rating, inclusive of the bilateral factor, is 70 percent. However, the Board finds that the evidence of record has not shown that the Veteran is unable to secure or follow any substantially gainful employment, at any time prior to May 15, 2017. At the time of his August 2009 TDIU application, he reported that the date he became too disabled to work was in July 2009 and he worked as a dump truck driver for J & V, Inc, beginning November 2008, at 10 hours a week. He also disclosed that that the highest level of education he completed was four years of high school, and that he had police and military training. A January 2009 vocational assessment report indicated that the Veteran was unemployed at that he was self-employed from December 2004 to May 2008, as the owner of G.M.G., in which he managed 41 rental units; he worked part-time; did not report his wages; but that he closed the business. Although additional work history was documented for the period of September 1997 to September 2005, his work history with J & V, Inc., from November 2008 to July 2009, was not noted. In a December 2009 VA Form 21-4192 Request for Information form, the Veteran’s former employer, J & V, Inc. confirmed that the Veteran worked as a truck driver for the company from October 2008 to July 2009. J & V, Inc. further indicated that no time was lost during the 12 months preceding his last date of employment, due to disability; the Veteran made no concessions to them by reason of age or disability; and that the Veteran’s employment terminated because he resigned. At the time of his VA examination for PTSD in August 2010, the Veteran indicated that he resigned from police work when he became more interested in real estate. Furthermore, the VA examiner noted that the Veteran was self-employed, and that the duration of his current employment, at that time, was approximately 2 – 5 years. The Veteran indicated that the time he lost from work within the 12-month period was “more than once a week”, and that his mind wanted to go to work, but he gets reclusive and avoidant. Describing the circumstances of his employment, he also indicated that even though he does not go to work on some days, he has some flexibility due to the nature of his employment. The VA examiner additionally remarked that the Veteran indicated that “occupationally[,] he is able to work, but withdraws from interactions due to irritability and the problems that his irritability caused in relationships. In order to avoid his irritability spoiling a relationship, he isolates himself from others.” In a November 2010 correspondence, the Veteran clarified that he worked as a Deli Bistro Chef at Kroger for approximately a week and-a-half, and that he resigned because he could not be on his feet for too long. No disabilities related to his PTSD were provided as a reason for his resignation. A May 2011 notice of disagreement suggests that the Veteran was employed, as the Veteran asserted that his condition was disabling, which caused him to lose days of work. He additionally reported that daily tasks were difficult for him because he was having trouble making decisions and he was overwhelmed with indecisiveness regularly; he was unable to handle stress and stay calm enough to do his job more than 3 – 5 times a week; he missed days of work and that at that time, he was self-employed so that he could have flexibility and not get fired from jobs. In an April 2013 buddy statement, his ex-wife, J.G., stated that when the Veteran was having a bad day with PTSD, he was unable to work. She further explained that he would make up excuses about why he was unable to report to work, and that there were periods where he missed extended time at work (three or four days a week) due to bad PTSD symptoms. In an April 2013 correspondence, the Veteran explained that he worked for himself and “that’s the only way [he is] able to stay employed. He further explained that due to his PTSD, he needed to limit the contact he has with other people, including his clients. In a June 2013 VA examination for PTSD, the VA examiner remarked that since his initial evaluation, the Veteran participated in vocational rehabilitation; he is now a real estate broker and auctioneer, but yet, only “seldom works, largely by choice as he lives with his father and spends time parenting his daughter.” The VA examiner explained that while he mentioned having difficulties interacting with potential real estate clients, this does not appear to be a function of his PTSD symptoms per se, but rather, “appears to be due to his anger and poor interpersonal skills.” Summarily, the overall evidence of record suggests that although the functional limitations of the Veteran’s service-connected PTSD affected his ability to work to some degree, he was not precluded from securing and/or maintaining employment prior to May 15, 2017. Although an August 2015 VA examination for foot conditions indicated that the Veteran’s feet condition impacted his ability to perform occupational tasks, thereby explaining that the Veteran resigned from his job as a police officer due to difficulty standing or walking any length of time, the evidence does not show that he was precluded from other forms of employment. Despite the functional limitations of his inability to walk or stand for an extended period of time, the Veteran, by his own words, as noted above, was able to maintain employment because he worked for himself, with flexibility. Therefore, he was not precluded from securing and/or maintaining substantially gainful employment. The Board, in no way, disregards the scope, magnitude and severity of the Veteran’s service-connected disabilities, the overall impact and severity of his service-connected disabilities have already been taken into consideration and is adequately reflective of his entitlement to a TDIU for the period beginning May 15, 2017. REASONS FOR REMAND The Board regrets further delay but finds that additional development is necessary before a decision can be rendered on the remaining issues on appeal. Service Connection Claims: Left Shin, Left Knee, Bilateral Thigh The Veteran asserts that his left shin, left knee and bilateral thigh disabilities are a related to his active service, and/or are due to or aggravated his service-connected disabilities. In February 2014, the Board remanded these issues for an opinion on direct and secondary service connection, noting that September 2008 and May 2011 correspondences indicated that the Veteran claimed that his conditions may be secondary to his service-connected bilateral foot disability. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board finds that the May 2015 VA examination for the hip, knee and foot are not in compliance with the directives of the February 2014 Board remand. In May 2015, the Veteran underwent a VA examination for the hip and left foot shin splint. With respect to the leg, the VA examiner determined that the Veteran did not have a current diagnosis of left shin weakness, but noted that the Veteran had stress fracture of the tibia. Although he provided an opinion on direct service connection, he did not render an opinion on whether the Veteran’s left foot shin splint/tibia stress fracture was due to or aggravated by his service-connected bilateral foot disability. Similarly, with respect to the hip, the VA examiner also determined that the Veteran did not have a current diagnosis of a hip condition. Although he provided an opinion on direct service connection, he did not render an opinion on whether the Veteran’s bilateral hip condition was due to or aggravated by his service-connected bilateral foot disability. Additionally, treatment records reflect that the Veteran has been diagnosed with degenerative joint disease affecting the left shin and the hip, and particularly, osteoarthritis of the left hip. The existence of a current disability is satisfied when a veteran has a disability at the time he/she files a claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, the Board finds that the Veteran has current disabilities of the left shin and bilateral hip, and the VA examiner’s findings that there were no current left shin weakness and bilateral hip disabilities were erroneous and accordingly, his opinions are based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal). This given, a remand is required for a new VA examination and opinion on the left knee shin splint/tibial stress fracture and bilateral hip disabilities. Finally, the Board also notes that the Veteran also underwent a VA examination for the left knee in May 2015, but no nexus opinion was provided. November 2008 and May 2015 VA examination reports reflect left knee pain and instability, as well treatment records which document chronic pain. As noted above, in Saunders, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. In this regard, the November 2008 and May 2015 VA examination reports reflect that the Veteran’s left knee pain results in functional impairment, including and not limited to, painful motion, increased with extended walking, and abnormal range of motion. Therefore, the Board finds that his chronic left knee pain constitutes a disability. Accordingly, a VA examination and nexus opinion on the left knee is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to obtain findings addressing the nature and etiology of his left shin, left knee and bilateral hip disabilities. a. For each disability (i.e. left shin, left knee, bilateral hip), opine whether it is at least as likely as not (50 percent probability or more) that disability was incurred in or is related to his active service. b. For each disability (i.e. left shin, left knee, bilateral hip), opine whether it is at least as likely as not (50 percent probability or more) that disability was caused by his service-connected bilateral foot and/or left ankle disability. c. For each disability (i.e. left shin, left knee, bilateral hip), opine whether it is at least as likely as not (50 percent probability or more) that disability was aggravated by his service-connected bilateral foot and/or left ankle disability. d. In rendering an opinion for each disability, consider all lay statements from the Veteran about the onset and symptomatology. e. Any evidence of a disability since August 2008, whether or not it has been resolved, shall constitute a “current disability” for purposes of determining the claims. f. If it is determined that there is another likely etiology for any of the disabilities, please indicate and provide a clear, detailed explanation. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel