Citation Nr: 18158578 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-40 306 DATE: December 17, 2018 ORDER Entitlement to service connection for a right ankle disorder is denied. The disability rating of 20 percent for a left ankle is restored, effective July 1, 2016. Entitlement to a disability rating in excess of 20 percent for left ankle disability is denied. Entitlement to disability rating in excess of 30 percent for asthma is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran does not have a current right ankle disability. 2. Throughout the claims period, the Veteran’s left ankle disability has been manifested by marked limitation of motion; there is no ankylosis or deformity of the ankle. 3. The Veteran’s asthma does not result in FEV-1 of 40- to 55-percent predicted; or, FEV-1/FVC of 40 to 55 percent; at least monthly visits to a physician for required care of exacerbations; or, intermittent (at least three per year) course of systemic (oral or parenteral) corticosteroids. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. 1101, 1110, 1137, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 2. The criteria for restoration of the Veteran’s 20 percent rating for a left ankle disability from July 1, 2016 are met. 38 U.S.C. 1155, 5107, 5112; 38 C.F.R. 3.102, 3.105(e) (i), 3.321, 3.344, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, Diagnostic Code 5237. 3. The criteria for entitlement to a disability rating in excess of 20 percent for a service-connected left ankle disability are not met. 38 U.S.C. 1155, 5107; 38 C.F.R. 4.71(a), Diagnostic Code 5271. 4. The criteria for entitlement to a rating in excess of 30 percent for asthma have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Right Ankle The Veteran asserts he has a right ankle disability due to shifting his weight off his service-connected left ankle disability. The Board concludes that the Veteran does not have a current diagnosis of a right ankle disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s medical records do not indicate treatment for any right ankle disability. The Veteran was afforded a VA examination for his service-connected left ankle disability in June 2014. The examiner reviewed the Veteran’s medical history and provided range of motion testing of the Veteran’s right and left ankle. While a left ankle disability was confirmed in the examination, the examiner did not find a disability associated with the Veteran’s right ankle. Range of motion testing was normal without objective evidence of pain, and there was no evidence of localized tenderness or pain on palpation of either ankle. The Veteran’s VA treatment records include a single complaint of pain in the ankles in February 2016 without further evaluation or diagnosis. The Board acknowledges the Veteran’s statements that he has right ankle pain. However, the Veteran is not competent to provide a diagnosis of a right ankle disability. This issue is medically complex, as it requires knowledge of the musculoskeletal system. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence of record. Finally, the Board is cognizant of the recent holding in Saunders v. Wilkie which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, No. 17-1466 (Fed. Cir. 2018). In sum, pain alone resulting in functional impairment can result in a disability, and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. However, here the medical records do not show that he experiences any functional impairment due to his subjective right ankle pain. As such, the Veteran’s right ankle pain alone is not sufficient evidence to show a right ankle disability for VA compensation purposes. Without a current disability, the Veteran is not entitled to service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Rating Reduction 2. Reduction of Left Ankle During the appellate period, in an April 2016 rating decision, the RO reduced the Veteran’s disability rating for a left ankle disability from 20 to 10 percent effective July 1, 2016. Here, the reduction of the rating of the Veteran’s left ankle disability did not change the Veteran’s combined disability rating from 50 percent. The criteria governing certain rating reductions for certain service-connected disabilities is found in 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) stated that this regulation applied to ratings that had been continued for long periods of time at the same level (five years or more). Brown v. Brown, 5 Vet. App. 413 (1993). In the present case, the 20 percent rating was in effect from September 9, 2003, more than 12 years, and thus the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability evaluations do apply, and reexamination disclosing improvement will not warrant a rating reduction. 38 C.F.R. § 3.344 (c). In addition, the Court noted in Brown that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer, supra, at 277. Accordingly, the Board must determine whether the evidence of record as of July 2016 established that the Veteran’s left ankle disability no longer warranted a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5271. After a thorough review of the evidence, the Board finds that the record does not show that the Veteran’s left ankle disability improved so as to warrant a rating reduction under the appropriate rating criteria. The Veteran underwent a VA examination in June 2014. At that time, he reported when he walks, he left ankle locks up and he has difficulty moving. The pain subsides quickly. It limits him from running or riding a bicycle. The Veteran denied flare-ups. Left ankle plantar flexion was limited to 30 degrees, dorsiflexion was limited to 15 degrees, each without objective evidence of painful motion. There was no additional loss of function after repetitive testing. He underwent a VA examination in March 2016. At that time, he reported weekly flare-ups of ankle pain if he attempted any exercise, requiring him to stay off the ankle for a few hours. He reported he was unable to run, and could not walk or stand more than 30 minutes. Left ankle plantar flexion was limited to 30 degrees, dorsiflexion was limited to 10 degrees. There was additional evidence of localized tenderness of the left ankle with crepitus. The Board finds that any documented improvement in the Veteran’s condition did not clearly reflect improvement in the Veteran’s ability to function under ordinary conditions of life and work. VA treatment records continued to show chronic left ankle pain. Importantly, as opposed to showing any improvement, the medical evidence of record demonstrates a steady decline in the Veteran’s left ankle disability. Moreover, the Veteran’s statements of record continued to report pain and functional limitations with respect to his work and activities of daily living. Under these circumstances, the evidence clearly did not demonstrate improvement in ability to function under ordinary conditions of life and work. In sum, the Board finds that based on the evidence at the time of the reduction, the Veteran’s service-connected left ankle disability still demonstrated functional limitations to warrant a 20 percent disability rating. Accordingly, based on the analysis above, the reduction of the Veteran’s left ankle synovitis was improper and restoration of a 20 percent rating is warranted from July 1, 2016, the effective date of the reduction. Increased Ratings Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.14, 4.40, 4.45; Johnson v. Brown, 9 Vet. App. 7 (1996). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful, unstable, or malaligned joints, due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the knees are considered major joints. 38 C.F.R. § 4.45. 3. Left ankle The Veteran seeks an increased rating for a left ankle disability which is currently evaluated as 20 percent disabling under Diagnostic Code 5271. Diagnostic Code 5271 provides ratings based on limitation of motion of the ankle. A maximum 20 percent rating is warranted for marked limitation of motion. The words moderate and marked are not defined in the Rating Schedule; however, the Rating Schedule provides some guidance by defining full range of motion of the ankle as 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71a, Plate II. The Board finds that there are no other applicable rating codes under which to rate the Veteran’s disability, as the medical evidence does not demonstrate that he suffers from ankylosis of the ankle or subastragalar or tarsal joint, or malunion of the os calcis or astragalus, or that he had an astragalectomy. 38 C.F.R. § 4.71a, DC 5270, 5272, 5273, 5274. Given the above, the Board finds that the Veteran suffers from marked limitation of motion of the ankle, as contemplated by the current 20 percent rating. The Veteran’s ankle has not otherwise shown deformity or disability that has not been contemplated by the rating criteria. Despite the limitation of motion of the ankle, the Veteran is able to complete activities of daily living and ambulate independently. Based upon a review of the evidence, to include consideration of the functional effects of repetitive motion of the joint, the Board finds that the current 20 percent rating, but no higher, is appropriate in this case. 4. Asthma The Veteran’s asthma is evaluated under 38 C.F.R. § 4.97, Diagnostic Code 6002, which pertains to bronchial asthma. Under Diagnostic Code 6602, a 30 percent rating is warranted for FEV-1 of 56- to 70-percent predicted; or, FEV-1/FVC of 56 to 70 percent; or, daily inhalational or oral bronchodilator therapy; or, inhalational anti-inflammatory medication. A 60 percent rating is warranted for FEV-1 of 40- to 55-percent predicted; or, FEV-1/FVC of 40 to 55 percent; or, at least monthly visits to a physician for required care of exacerbations; or, intermittent (at least three per year) course of systemic (oral or parenteral) corticosteroids. A 100 percent disability rating is warranted for an FEV-1 less than 40 percent predicted; or, FEV-1/FVC less than 40 percent; or, more than one attack per week with episodes of respiratory failure; or, requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602. Based upon the available evidence, the Board finds that the criteria for a disability rating higher than 30 percent for bronchial asthma have not been satisfied. The Veteran submitted a July 2013 private evaluation indicating his asthma was controlled by medication during his previous VA examination and that his last test was a failed test. Auscultation of his thorax is diagnosis of symptomatic expressive asthma. His symptoms now have suffered worsening via more frequent exacerbations, increased dyspnea, increased wheeze, more easily triggered. He underwent a VA examination in June 2014. He reported that his last visit at the pulmonary clinic was in March 2014. He had not had an asthma attack or ER visit in one year. He takes Budesonide daily and albuterol as needed. The Veteran’s asthma did not require the use of oral or parenteral corticosteroid medications. There was required inhalational bronchodilator therapy on an intermittent basis and inhalational anti-inflammatory medication on a daily basis. There was not used oral bronchodilators, antibiotics, or outpatient respiratory therapy. The Veteran did not have any asthma attacks with episodes of respiratory failure in the previous 12 months. He had not had any physician visits for required care of exacerbations. A pulmonary function test (PFT) had been performed which indicated results consisting of FEV-1 at 79 percent predicted pre-bronchodilator and 63 percent predicted post-bronchodilator; and FEV-1/FVC at 65 percent pre-bronchodilator and 73 percent post-bronchodilator. VA treatment records dated October 2015 and April 2016 show the Veteran reported his asthma was stable. Based on the foregoing evidence of record, the Board finds that the Veteran’s asthma warrants a rating no higher than 30 percent. In this regard, the PFT results have at no point exceeded the threshold required for a rating above 30 percent, and he has not required intermittent courses of systemic corticosteroids or daily use of systemic high dose corticosteroids or immuno-suppressive medications. Additionally, the evidence does not show there have been at least monthly visits to a physician for required care of exacerbations or more than one attack per week with episodes of respiratory failure. Thus, the criteria for a rating in excess of 30 percent for this period have not been met. Although the July 2013 private examiner stated the Veteran’s symptomatology had worsened to include more frequent exacerbations, he has not indicated the occurrence of attacks, use of medications, or visits to doctors at the frequency required for a higher evaluation. Furthermore, the Veteran contradicted the private examiner’s findings by indicating that he had not had an asthma attack or visit to the ER for an exacerbation over the past year. In sum, the Board finds that a rating no higher than 30 percent is warranted for the Veteran’s asthma. In denying higher ratings, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against higher or separate ratings, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Acquired Psychiatric Disorder The Veteran asserts he has a psychiatric disorder caused by active service. The Veteran submitted a private evaluation dated in September 2013. The psychologist reported diagnoses of dysthymic disorder and generalized anxiety disorder that “are as likely as not service-connected” but provided no rationale for the opinion. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an acquired psychiatric disorder because no VA examiner has opined whether the Veteran’s diagnosed depression is related to the Veteran’s active service. As such, the claim is remanded for the Veteran to be afforded an adequate examination. The matters are REMANDED for the following action: Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (Continued on the next page)   If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include work as a hospital corpsman. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel