Citation Nr: 18157487 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 12-12 359 DATE: December 13, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for unspecified depressive disorder is granted. Entitlement to a rating in excess of 10 percent, prior to January 10, 2016, for status post left ankle arthroscopy and reconstruction, previously characterized as left ankle sprain, is denied. Entitlement to a 20 percent rating from January 11, 2016 to March 18, 2016, for status post left ankle arthroscopy and reconstruction, previously characterized as left ankle sprain, is granted. REMANDED Entitlement to a rating in excess of 10 percent from June 1, 2016, for status post left ankle arthroscopy and reconstruction, is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran has a valid diagnosis of PTSD. 2. The Veteran has a current diagnosis of unspecified depressive disorder that is as likely as not etiologically related to his active service. 3. Prior to January 10, 2016, the Veteran’s left ankle disability was manifested by pain, occasional weakness, subjective reports of instability, and objective evidence of no more than moderate limitation of motion. There is no evidence of ankylosis. 4. From January 11, 2016 to March 18, 2016, the Veteran’s left ankle disability more nearly approximated marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107(b) (2014); 38 C.F.R. §§ 3.303, 3.304 (2018). 2. With resolution of reasonable doubt in the Veteran’s favor, the criteria for service connection for unspecified depressive disorder have been met. 38 U.S.C. §§ 1110, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for an evaluation greater than 10 percent for status post left ankle arthroscopy and reconstruction (previously rated as left ankle sprain) have not been met prior to January 10, 2016. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.1 - 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5271 (2018). 4. The criteria for a maximum 20 percent rating for status post left ankle arthroscopy and reconstruction (previously rated as left ankle sprain) are met from January 11, 2016 to March 18, 2016. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.1 – 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5271 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had over 30 years of Army National Guard and Army Reserve service, with numerous periods of active service and active duty for training (ACDUTRA) and three deployments to Afghanistan and Kuwait. His honorable service ended in 2010. For purposes of this decision, the Veteran had active service from June 2005 to March 2007, and from March 2008 to July 2009. The RO denied service connection for adjustment disorder with depression. However, the issue on appeal has been recharacterized and bifurcated to reflect the Veteran’s contentions. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran underwent left ankle arthroscopic and reconstructive surgery in March 2016. In June 2016, the RO granted a temporary total (100 percent) disability rating during his convalescence (March 18, 2016 to May 31, 2016) pursuant to 38 C.F.R. § 4.30. In September 2016, the RO granted service connection for scars associated with the March 2016 surgery. The Veteran did not file an appeal with respect to either rating decision. Thus, these issues are not currently before the Board. In May 2010, the RO also granted service connection for left ear hearing loss, chronic maxillary and ethmoid sinusitis, and migraine headaches. The RO awarded a noncompensable rating for each disability. The Veteran filed a timely Notice of Disagreement, and the RO issued a Statement of the Case (SOC) in April 2012. In May 2012, the Veteran specifically and unambiguously withdrew these three claims. The Board acknowledges that the RO subsequently issued an August 2012 SSOC that addressed these issues. However, there is no indication in the six years since then that the Veteran believes these claims are still on appeal. Thus, the issues of entitlement to compensable ratings for left ear hearing loss, chronic maxillary and ethmoid sinusitis, and migraine headaches are not currently before the Board. In October 2012, the RO (1) denied service connection for excessive sweating and numbness (claimed as hernia surgery residuals), eczema on the left leg, and right ear hearing loss; (2) declined to reopen previously denied claims of service connection for a respiratory disorder, a sleep disorder, a left little toe disorder; (3) granted service connection for a right ankle disability. The Veteran filed a timely NOD in June 2013. In August 2016, the RO issued an SOC with respect to the eczema and sweating/numbness claims. The Veteran did not perfect the appeal. In August 2016, the RO also granted service connection for allergic rhinitis (claimed as respiratory issue), obstructive sleep apnea, exotosis due to residuals of left fractured 5th proximal phalanx, and right ankle sprain. The Veteran did not file a NOD. The Veteran withdrew the right ear hearing loss claim in January 2013. Thus, these issues are not currently before the Board. Service Connection 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, 1131; 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 claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While psychiatric disabilities such as psychoses are listed, the Veteran has only been diagnosed with neuroses and not a psychosis. Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303 (b) based on “chronic” symptoms in service and “continuous” symptoms since service are not applicable. Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 1. Entitlement to service connection for PTSD The Veteran contends that he sustained a stress- and trauma-related disorder related to his three deployments. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The record does not show combat service and the Veteran does not contend that he had combat service. Service treatment records (STRs) are negative for any complaints or treatment relating to PTSD. Psychiatric examinations were consistently normal. Post-service VA treatment records contain numerous negative PTSD screens. However, on a few occasions the Veteran was diagnosed with PTSD or “rule out PTSD” by mental health clinicians. In October 2016, the Veteran submitted to a VA PTSD examination. The most stressful situation he related involved driving from Bagram to Kabul for meetings, as well as carrying locked and loaded weapons with body armor (i.e. the constant need for situational awareness). He denied ever coming under enemy attack or experiencing any explosions or traumatic events. The examiner reviewed the claims file and determined that the Veteran did not have PTSD. He acknowledged that the Veteran’s reported stressor was related to fear of hostile military and terrorist activity. However, he determined that none of the DSM-5 diagnostic criteria for PTSD were met. Instead, the examiner diagnosed unspecified depressive disorder, which is discussed below. The Board finds the VA examination report to be highly probative because the examiner reviewed the record (to include the VA treatment records discussed above), performed a clinical interview of the Veteran, and provided a rationale for the conclusion reached that is supported by the rest of the evidence in the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the evidence does not demonstrate that the Veteran has a full and valid PTSD diagnosis. Instead, when he was clinically interviewed and his full history was reviewed via past medical and service treatment records, the VA examiner found that he did not have PTSD. The VA examination report does reference that a few VA mental health providers diagnosed PTSD, yet the VA examiner found no such psychiatric diagnosis. The Board finds the VA examiner’s assessment and diagnosis to be more probative than that of the VA clinicians as it was based on a more thorough examination and review of the record. For example, there is no indication that the VA clinicians reviewed any treatment records in an effort to put the Veteran’s psychiatric history into context. Therefore, the VA examiner’s findings are found to be the best evidence of record regarding a current diagnosis of PTSD. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for PTSD, and the claim must be denied. 2. Entitlement to service connection for unspecified depressive disorder The Veteran contends that the depression with which he is currently diagnosed began during the period of active service from June 2005 to March 2007. He states that his father-in-law, with whom he was very close, became terminally ill during his second deployment and that as a result he became depressed. Also, the Veteran asserts that during his second deployment he learned that he was being laid off from the company where he had worked for 18 years. He maintains that he has been depressed ever since. Finally, the Veteran asserts that he received orders for his third deployment less than a year after returning from his second deployment, and that this contributed to his depression. Service treatment records (STRs) are negative for any complaints or treatment relating to depression prior to the Veteran’s second deployment, which occurred during the period of active service from June 2005 to March 2007. Reserve records include an April 2007 Post-Deployment Assessment, which shows that the Veteran denied feeling depressed, but endorsed thoughts/concerns about hurting or losing control with someone. Also in April 2007, the Veteran reported that he was trying to find a new job and was experiencing financial stress and transition issues with his wife. The diagnosis was adjustment disorder, depressed mood. In July 2007, it was noted that the Veteran was having trouble adjusting to civilian life. These records are dated just a few months after discharge from the relevant period of active service. The Veteran’s third deployment took place during his last period of active service. (March 2008 to July 2009). STRs include a March 2009 Post-Deployment Assessment, which shows that the Veteran reported increased irritability and forgetfulness/trouble remembering. Reserve records include a November 2009 Post-Deployment Assessment, which shows that the Veteran reportedly was receiving mental health treatment for depression; he stated that the symptoms were manageable. Notably, contemporaneous VA and private treatment records contain diagnoses of depression and adjustment disorder. In May 2010, a private provider diagnosed adjustment disorder, depressed mood, rule out depression. He noted that the Veteran “might be minimizing symptoms.” In January 2011, his VA therapist noted that the Veteran’s symptoms were “starting to look more like depression.” These records are dated approximately a year after the Veteran’s third deployment, and the explanation he provided for his depression then is consistent with his current contentions of experiencing depression during his second deployment due to family, employment, and financial problems. In sum, when all doubt is resolved in the Veteran’s favor, the Board concludes that he experienced depression during active service. The final criterion for service connection is evidence of a nexus between the Veteran’s current disability and the depression he experienced during service. The only medical professional to address the possibility of a nexus was the October 2016 VA examiner. After an examination of the Veteran and a review of his claims file, the examiner diagnosed unspecified depressive disorder. His negative opinion is based on his finding that “there is insufficient evidence for a depressive disorder in service” and that the condition was not diagnosed until several years following military service. As the VA examiner’s direct service connection opinion is based upon an inaccurate factual premise, it is of little probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board observes that service connection is not limited to disabilities incurred due to service, but can also be granted for disabilities incurred during service. The Veteran has provided competent and credible testimony with respect to his psychiatric symptoms during active service. April 2007 Reserve records show that the Veteran has reported feeling depressed ever since his second deployment. Post-service records dated within one year of discharge show consistent treatment for depression. When all doubt is resolved in favor of the Veteran, the Board concludes that his current depressive disorder was incurred during active service, and entitlement to service connection is warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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 active military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Other important factors include excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. 4.40, 4.45, 4.59. The Veteran’s left ankle disability is rated under DC 5271, which provides for a 10 percent evaluation for moderate limitation of motion of the ankle, and a 20 percent evaluation for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. The normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II (2014). The words “moderate” and “marked” used in DC 5271 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.” 38 C.F.R. 4.6. In addition, DC 5270 provides a 30 percent evaluation for ankylosis of an ankle, in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 and 10 degrees; and a 40 percent evaluation is potentially available with ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. Part 4, DC 5270. 3. Entitlement to a rating in excess of 10 percent prior to January 10, 2016 for status post left ankle arthroscopy and reconstruction (previously rated as left ankle sprain) Upon careful review of the evidence, the Board finds that the preponderance of the evidence is against assigning a rating higher than 10 percent for the Veteran’s right ankle disability prior to January 10, 2016. Specifically, prior to this date, the evidence weighs against a finding that the Veteran’s disability was manifested by, or more nearly approximated, marked limitation of motion so as to warrant a rating in excess of 10 percent. During this time period, the Veteran complained of constant left ankle pain, occasional instability, difficulty sleeping at night due to pain, limited mobility, and the use of assistive devices. The Veteran exhibited full dorsiflexion and plantar flexion at the January 2010 and June 2012 VA examinations. There was 10 degrees of dorsiflexion following three repetitions in June 2012. Dorsiflexion was greater than 10 degrees upon physical examination by a private provider in July 2010. The Veteran’s plantar flexion was also normal at the April 2013, April 2014, and December 2015 VA examinations, with objective evidence of painful motion at 45 degrees in April 2013. The Veteran’s dorsiflexion was to 15 degrees, with indication of painful motion beginning at 15 degrees in April 2013, April 2014, and December 2015. Although there 10 degrees less dorsiflexion in June 2012, the Board finds compelling that the April 2013, April 2014, and December 2015 examination reports reflect that there were no changes to the Veteran’s ROM measurements after three repetitions. Muscle strength testing was consistently normal with no evidence of atrophy. There is no objective evidence of instability. The VA examinations during to this period reflect ankle pain. However, as reflected in the December 2015 VA examination report, the Veteran reported being able to walk two miles before having any pain. Based on these findings, the record does not suggest that the Veteran had marked limitation of motion of the left ankle. As such, a rating higher than 10 percent is not warranted under DC 5271 prior to January 11, 2016. The Board also finds that there is no basis for assigning a higher rating when considering additional functional loss. The Board has considered the fact that the April 2013, April 2014, and December 2015 examiners noted functional loss after repetitive use consisting of less movement than normal, pain on movement, and disturbance of locomotion, and interference with sitting, standing, and weight bearing. However, even with repetitive use there is no significant loss of motion. The clinical findings from the examination reports do not suggest that the Veteran’s full range of motion would change to the degree required for a higher rating after repetitive use, due to pain, or with weight bearing. In addition, the Veteran has consistently denied flare-ups to VA examiners. Although the Veteran reported to the December 2015 examiner that his job as a call center instructor required him to be on his feet, none of the VA examiners found any impact on the Veteran’s ability to work. The Board acknowledges the Veteran’s regular use of an orthopedic insert or brace, but there is no evidence that his left ankle disability suffered significant or additional functional loss beyond that contemplated by the assigned 10 percent rating. Thus, even after considering the additional factors set forth in 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, the evidence of record does not tend to support a finding that the Veteran’s disability picture generally approximated “marked” limitation of motion from June 5, 2009 to January 11, 2016. Instead, the Board finds that the Veteran’s symptoms were most analogous to those associated with “moderate” limitation of motion of the right ankle. The Board has also considered whether a higher evaluation is available under a different diagnostic code. However, for the period prior to January 11, 2016, there is no indication that the Veteran had ankylosis of the ankle, or its functional equivalent, so as to warrant an evaluation under DC 5270. See 38 C.F.R. § 4.71a, Diagnostic Code 5270. In this regard, all of the examiners specifically noted that the Veteran did not have ankylosis, and the record does not otherwise suggest immobility of the left ankle joint. There is also no evidence of astragalectomy, malunion of the os calcis or astragalus, or ankylosis of the subastragalar or tarsal joints so as to warrant ratings in excess of 10 percent under DCs 5272, 5273, or 5274. See 38 C.F.R. § 4.71a, DCs 5272-74. 4. Entitlement to a rating in excess of 20 percent from January 11, 2016 to March 18, 2016, for status post left ankle arthroscopy and reconstruction (previously rated as left ankle sprain) During this time period, the Veteran complained of constant left ankle pain, instability, swelling, difficulty sleeping at night due to pain, limited mobility, and the use of assistive devices. A January 2011, 2016 private treatment record reflects normal range of motion, positive anterior drawer, positive talar tilt, and a ligament disorder. Surgery was recommended. The Veteran submitted a February 2016 Disability Benefits Questionnaire from the same private provider. The examiner diagnosed lateral collateral ligament sprain (recurrent), osteochondritis dissecans, and instability. Range of motion testing results revealed dorsiflexion to 10 degrees and plantar flexion to 40 degrees (with pain at 40 degrees). There was additional range of motion loss after repetitive use testing, with dorsiflexion to 5 degrees. The examiner noted that disturbance of locomotion, weakened movement, incoordination, swelling, instability, and interference standing limit his functional ability on repetitive use. Instability was associated with limitation of motion. Muscle strength testing was normal and no muscle atrophy or ankylosis was found. He denied flare-ups that cause functional loss. The Veteran’s regular use of a brace was noted and his ability to work was impacted in that lateral ankle stability “can have profound effects on standing for long periods of time, walking, lifting equipment, and fall prevention.” Based on the totality of the evidence, the Board finds that when considering the Veteran’s statements and all functional limitations during repetitive use, to include instability, the Veteran’s left ankle disability more nearly approximates marked limitation of motion, corresponding to a maximum 20 percent rating under DC 5271, as of January 11, 2016, to the date of surgery in March 2016. The Board has considered other applicable diagnostic codes in its effort to afford the Veteran the highest possible rating, however the only rating higher than a 20 percent rating is a rating under DC 5270, which is for ankylosis of the ankle. The evidence of record does not indicate that ankylosis was present in his left ankle. Thus, a rating under DC 5270 is not warranted. Accordingly, pursuant to Johnston v. Brown, 10 Vet. App. 80 (1997), sections 4.40 and 4.45 do not apply. The Board has also considered Brummett v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1136. In Brummett, the United States Court of Appeals for Veterans Claims (“the Court”) vacated a Board determination that ratings in excess of 20 percent for the Veteran’s right and left ankle disabilities, which is the maximum rating based on range of motion for the disorders, were not warranted. In essence, the Court reasoned that because higher ratings were available for ankylosis, a remand was warranted for an examination that took into account limitation of motion during flare-ups. This case is distinguishable from Brummett. As noted, the Veteran repeatedly denied having any flare-ups that resulted in functional loss during this time period.   REASONS FOR REMAND Entitlement to a rating in excess of 10 percent from June 1, 2016, for status post left ankle arthroscopy and reconstruction is remanded. Following March 2016 surgery and convalescence through May 2016, there are two VA examinations of record during this time period. Unfortunately, they are both inadequate for rating purposes. The September 2016 VA examination report is inconsistent. Under “Additional factors contributing to disability,” the examiner reported “Less movement than normal due to ankylosis, adhesions, etc.” However, the examiner later checked that the Veteran has no ankylosis. Accordingly, the examination report is unclear as to whether the Veteran suffered from ankylosis in his service-connected left ankle at that time. In January 2017, the same VA examiner again reported “Less movement than normal due to ankylosis, adhesions, etc.” In addition, she did not respond to the question concerning flare-ups. The AOJ should obtain a new VA examination (with a different examiner if possible) to determine the current disability level of the Veteran’s service-connected left ankle disability. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination with a different examiner than the clinician who conducted the September 2016 and January 2017 examinations to determine the severity of the Veteran’s service connected left ankle disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Test the range of motion of the left ankle in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b) Obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veteran. The examiner should elicit relevant information as to the Veteran’s flares with a description of the additional functional loss, if any, the Veteran has during flares. The examiner should estimate the Veteran’s functional loss due to flares based on all the evidence of record, including the lay information, or sufficiently explain why the examiner cannot do so. (c) State whether there is any ankylosis and describe that ankylosis in detail to include the time of onset, if possible. (d) State whether there is malunion of the os calcis or astralgus, and/or an astragelectomy and, if so, the nature, extent, and severity of these conditions.   2. Thereafter, review the record and ascertain that all appropriate development has been accomplished. If not undertake corrective action. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.N. Poulson, Counsel