Citation Nr: 19156339 Decision Date: 07/23/19 Archive Date: 07/22/19 DOCKET NO. 1840070 DATE: July 23, 2019 ORDER Entitlement to an effective date of February 15, 2005, for the award of service connection for a right ankle disability is granted. Entitlement to a rating in excess of 10 percent for right ankle disability under Diagnostic Code 5271 is denied. A separate 10 percent rating for right ankle disability under Diagnostic Code 5262 is granted. Entitlement to service connection for a back disability is granted. REMANDED Entitlement to service connection for face and body acne is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded Entailment to service connection for a sleep disability is remanded. FINDINGS OF FACT 1. The Veteran’s reopened service connection claim for a right ankle disability was based in part on the addition of more of his service treatment records to the claim file. 2. The Veteran’s right ankle disability manifested as moderate limitation of motion with slight instability. 3. The preponderance of the evidence is for finding that the Veteran’s back disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for an effective date of February 15, 2005, for the grant of service connection for a right ankle disability have been met. 38 U.S.C. § §§ 5107, 5110 (2012); 38 C.F.R. § § 3.102, 3.155, 3.156(c), 3.400 (2018). 2. The criteria for a right ankle disability rating in excess of 10 percent have not been met. 38 U.S.C. § §§ 1155, 5107 (2012); 38 C.F.R. § §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5271 (2018). 3. The criteria for a separate 10 percent rating for slight right ankle instability have been met. 38 U.S.C. § §§ 1155, 5107 (2012); 38 C.F.R. § §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5262 (2018). 4. The criteria for service connection for the Veteran’s back disability are met. 38 U.S.C. § §§ 1110, 5107 (2012); 38 C.F.R. § §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to December 1994 and from January 1997 to January 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision. The Board acknowledges that the Veteran, through his attorney, has made a general argument regarding the VA’s duty to assist and duty to notify. However, the Board addresses the inadequate VA examinations in the Remand section. The Veteran’s representative failed to advance any specific arguments with regard to the adequacy of the Veteran’s right ankle VA examination, so the Board finds that that examination was sufficient to determine the severity of this right ankle disability. The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Earlier Effective date In February 2005, the RO denied the Veteran’s service connection claim for his right ankle. The RO determined that while the Veteran’s service records showed that he broke his ankle in 1998 while in the Reserves, there was no evidence of a right ankle condition during active duty. Consequently, service connection was denied. The Veteran was notified of his appeal rights and no new and material evidence received within one year of the issuance of the decision. Thus, the February 2005 rating decision is final. 38 U.S.C.§ 7105 (2012); 38 C.F.R. § §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2018). In an August 2017 rating decision, the RO reopened the Veteran’s claim and granted service connection for his right ankle disability, effective December 8, 2016, the date on which his intent to file a claim was received. The Board notes that the Veteran’s claim was received within one year. In January 2018, the Veteran filed a notice of disagreement seeking an earlier effective date and an increased disability rating. Previous RO decisions that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE); however, if the evidence establishes CUE in a prior final decision, such decision will be reversed or amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § § 3.105(a). Neither the Veteran nor his representative have argued that there was CUE in the February 2005 rating decision. Except as otherwise provided, the effective date for a grant of compensation will be the day following separation from active service or the date entitlement arose, if a claim is received within one year of separation. 38 U.S.C. § § 5110(a) (2012); 38 C.F.R. § § 3.400 (2018). Otherwise, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. Id. The effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) (“the Court thus holds that the effective date statute, 38 U.S.C. § § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed”); aff’d Sears v. Principi 349 F.3d 1326 (2003). Here, however, the Veteran’s service connection claim was reopened and granted based on the addition of the Veteran’s service treatment record to the claims file. The Veteran’s service connection claim was granted based on these additional treatment records and a positive VA medical opinion. The Board notes that 38 C.F.R. § § 3.156(c)(1) requires VA to reconsider the merits of a veteran’s claim whenever it associates relevant service department records with the claims file. Furthermore, an award granted based in all or part of newly added records is entitled to become effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. See 38 C.F.R. § § 3.156(c)(3). Only if benefits are granted based on this reconsideration must VA consider an earlier effective date under the provision of 38 C.F.R. § § 3.156(c)(3) and (4). The Board finds that the Veteran’s reopened service connection claim meets the requirements of 38 C.F.R. § § 3.156(c)(3) because his claim was granted based in part on the additional service records. Therefore, he is entitled to an earlier effective date of February 15, 2005, the date VA received the previously denied claim. Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § § 1155 (2012); 38 C.F.R. § §§ 4.1, 4.20 (2018). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7 (2018). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § § 4.3 (2018). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the granting of an earlier effective date, the Board will consider all evidence of severity from February 2005. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s right ankle disability is currently rated under Diagnostic Code 5271, limited motion of the ankle. 38 C.F.R. § § 4.71a (2018). Under this Diagnostic Code a 10 percent rating is warranted with moderate limited motion and a 20 percent rating is warranted under marked limited motion. Standard range of motion of an ankle is to 20 degrees of dorsiflexion and to 45 degrees of plantar flexion. 38 C.F.R. § § 4.71 Plate II. While the schedule of ratings does not provide information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, guidance can be found in the VA Adjudication Procedures Manual (M21-1). The M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See M21-1, III.iv.4.A.3.k. The M21-1 is not binding on the Board. However, the Board must address relevant provisions of the M21-1 and conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257 (2018). In finding that the Veteran’s limitation of ankle motion is not more accurately defined as “marked,” the Board considers VA’s proposed change to Diagnostic Code 5271, which was published in February 2003. See 68 FR 6998. In the proposed regulation, VA noted that it hired an outside consultant to recommend changes “…to ensure that the schedule uses current medical terminology and unambiguous criteria, and that it reflects medical advances that have occurred since the last review. The consultant convened a panel of non-VA specialists to review the portion of the rating schedule dealing with the musculoskeletal system in order to formulate recommendations.” Id. Regarding Diagnostic Code 5271, VA noted that the terms “marked” and “moderate” are subjective and proposed to substitute more objective criteria that was recommended by the consultants. Specifically, it was proposed to assign a 20 percent rating if there was less than 5 degrees passive dorsiflexion or less than 10 degrees passive plantar flexion, and a 10 percent rating if there was less than 15 degrees of passive dorsiflexion or less than 30 degrees passive plantar flexion. Id. at 7018. It was noted that this change would promote consistent evaluations. Id. The Board finds the explanation of the proposed regulation to be persuasive. Significantly, VA consulted with specialist medical professionals who recommended objective criteria based upon current medical knowledge with the specific intent of ensuring more consistent outcomes for veterans. Then, in August 2017, VA again proposed to change Diagnostic Code 5271. See 82 FR 35719. VA noted that the criteria set forth in Diagnostic Code 5271 are “subjective and the terminology is vague, resulting in inconsistent evaluations.” VA proposed this time to define “marked” as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion, and “moderate” as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. Id. at 35723. VA noted that, “[a]s VA currently uses these standards to define marked and moderate, this change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel.” Id. The Board finds the explanation of the proposed regulation to be persuasive because again, VA is expressing its intent to codify a policy that was employed to ensure more uniformity among its rating personnel. Additionally, the proposed criteria were similar to those proposed in 2003, with the exception that the word “passive” was not included. In Dorland’s Illustrated Medical Dictionary, 1592 (32nd ed. 2012), range of motion redirects the reader to “exercise.” Passive exercise “is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient’s own body.” Id., at 658. Active exercise is “motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part.” Id. It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran’s joint farther than he would be able to move it on his own. Therefore, the omission of the word “passive” from the 2017 proposed regulation is likely more favorable to veterans, which causes the Board to be more inclined to employ its use. The Board does not consider the M21-1 provision to be binding, but finds the reasoning employed in the 2003 and 2017 proposed rules to be highly persuasive in support of a finding that the ranges of motion listed in the M21-1 are appropriate, given that they are nearly identical to the 2003 proposal that was made in consultation with specialist medical professionals. The Board also considers whether an increased rating is warranted under other Diagnostic Codes pertaining to the ankle. Diagnostic Code 5270 contemplates ankylosis of the ankle. A 20 percent evaluation is warranted for ankylosis of the ankle in less than 30 degrees of plantar flexion. A 30 percent evaluation is warranted for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. A 40 percent evaluation is warranted when there is ankylosis of the ankle 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. § § 4.71a. The Veteran retains the ability to move his ankle, therefore he does not have ankylosis. Because the Veteran’s ankle disability is based upon limitation of motion the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss that the Veteran may have sustained by virtue of other factors: less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 38 C.F.R. § §§ 4.40, 4.45 (2018); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran received a VA examination in April 2017. The Veteran’s range of motion was dorsiflexion to 10 degrees and plantar flexion to 30 degrees; he experienced pain with range of motion testing. He reported having flare-ups where he experienced pain and swelling. He stated that he had issues climbing up and down the stairs at his job. After repetition, there was no additional loss in range of motion. Likewise, the examiner noted that the Veteran had no additional loss in range of motion during flareups. The examiner also noted that the Veteran had reduced strength in his dorsiflexion and plantarflexion range of motions. He did not have ankylosis but occasionally used a brace. In a January 2019 private opinion, the doctor noted that the Veteran’s right ankle caused significant gait alteration. The Board finds that a disability rating in excess of 10 percent under Diagnostic Code 5271 is not warranted. The August 2017 VA examination shows that the Veteran’s plantar flexion was 0 to 30 degrees with pain and his dorsiflexion was 0 to 10 degrees with pain. The Board acknowledges that the Veteran had abnormal limited range of motion, but the evidence does not show the Veteran had marked limitation of motion. In support of this finding, the Board notes that the Veteran could perform repetitive motion with no additional loss in range of motion. Though he experienced flare-ups, they also did not cause an additional decrease in his range of motion. He retained half of his dorsiflexion and two thirds of his plantar flexion. These factors weigh against a finding that the severity of the Veteran’s limitation of ankle motion is more accurately described as “marked.” Additionally, for the reasons discussed above, the Board finds the objective criteria proposed by VA as a revision to Diagnostic Code 5271 to be highly persuasive. The Veteran’s dorsiflexion was less than 15 degrees, but greater than 5 degrees. His plantar flexion was 30 degrees, which is above the cutoff for what is described as “moderate” in the proposed regulation and later in the M21-1, and again in a second proposed regulation. While the Board acknowledges that the Veteran had limited painful motion, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); 38 C.F.R. § § 4.40 (2018). Therefore, even when considering functional limitations due to pain and other factors identified in 38 C.F.R. § §§ 4.40, 4.45, the Board finds that the Veteran’s functional loss from his right ankle disability does not equate to more than the disability picture contemplated by the 10 percent rating. 38 C.F.R. § § 4.71a (2018). Diagnostic Code 5262 contemplates impairment of the tibia and fibula. A 40 percent rating is assigned with nonunion, with loose motion, requiring brace. With malunion, 30, 20, and 10 percent ratings are warranted if there is marked, moderate, or slight knee or ankle disability, respectively. While the August 2107 examination documented the Veteran as negative for instability, the Veteran reported occasional use of a brace. Ankle instability is not contemplated by Diagnostic Code 5271, so the Board finds that a separate 10 percent rating under Diagnostic Code 5262 is warranted. However, a 20 percent rating is not warranted. As previously stated, there was no instability noted at his August 2017 examination, but the Board acknowledges the Veteran use of an ankle brace which shows evidence of instability. Nevertheless, the record lacks lay or medical evidence to support a higher rating for moderate ankle instability. Therefore, his instability is most accurately described as slight. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § § 3.303 (2018); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § § 3.102 (2018). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Back The Board acknowledges that the Veteran’s service connection claim for a back disability was previously denied in a February 2005 rating decision. Because the Veteran did not submit a notice of disagreement or new evidence within one year of the rating decision, new and material evidence would be required to reopen the Veteran’s claim. 38 U.S.C. § § 5108; 38 C.F.R. § § 3.156(a). After the February 2005 rating decision, however, service personnel records were received. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. 38 C.F.R. § § 3.156(c) (2018). If the newly received service department records do not remedy defects in the claim and contain facts that were never in question (i.e., are superfluous to the information already existing in the file at the time of the prior denial), they are not “relevant”, and reconsideration is not required. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017), reh’g denied, 880 F.3d 1378 (2018). The service personnel records contained information pertinent to the Veteran’s service connection claim for a back disability. Therefore, new and material evidence is not needed to reopen his previously denied claim. The Veteran’s service records show multiple complaints of back pain. In August 1990, he reported having back pain for the past two weeks. He reported back pain again in September 1990. In April 1991, he stated that his chronic back pain was aggravated by PT. In August 2017, he received a VA examination. The examiner opined that his back disability was less likely than not due to service. While the examiner considered the Veteran’s multiple back complaints in service, he noted that his Navy Reenlistment examination in 2003 shows no documentation of recurrent back pain. Accordingly, the examiner concluded that the Veteran’s current back condition was unrelated to his in service complaints. Conversely, in a June 2018 opinion, the Veteran’s private doctor concluded that his current back condition was due to service. The examiner noted his multiple in service complaints and noted that they caused the Veteran to be placed on light duty. In addition to the in service complaints, the examiner noted that, since separation from service, the Veteran had not had any injuries severe enough to cause his current back condition. Additionally, a January 2018 statement from the Veteran’s attorney noted that the Veteran did not receive a full examination when he reenlisted in the Reserves in 2003. He was only given a questionnaire. Furthermore, the Veteran did not report his back issues because he felt that to state otherwise would negatively impact his separation and transfer to the Reserves. The Board considers the medical and lay evidence of record and finds that the preponderance of the probative evidence is for the Veteran’s service connection claim. The August 2017 examiner based his opinion on the 2003 reenlistment examination, but he did not consider the Veteran’s reasons for denying back issues. The Board finds the January 2018 statement discussing why the Veteran did not report his back problems when he reenlisted competent and credible. Thus, the Board affords the August 2017 VA opinion less probative value. The Board finds the June 2018 private doctor’s opinion competent, credible and assigns it high probative value. Accordingly, service connection for the Veteran’s back disability is warranted. REASONS FOR REMAND 1. Acne The Veteran’s service records contain multiple complaints and in service treatment for acne. Likewise, in a September 2018 treatment note, the Veteran’s doctor stated that the Veteran had a history of facial irritation after shaving and a history of acne since service. The doctor, however, did not provide a nexus opinion. Accordingly, the Board finds a VA examination is necessary to determine if the Veteran’s current acne issues are related to his in service treatment. 2. Psychiatric disorder The Board acknowledges that the Veteran received a VA examination in April 2017 but finds that examination inadequate. The examiner found that the Veteran’s psychiatric issues were not related to any in service event; however, the examiner failed to consider if the Veteran’s in service heart complaints were manifestations of his anxiety disorder. Later in November 2018, the Veteran provided a description of an in-service event that he related to the start of his panic attacks. Additionally, the record contains a positive private DBQ from October 2018 noting that the Veteran has PTSD related to his active service. It is not clear if the Veteran’s PTSD diagnosis was based on the DSM-V, and there is no other indication of a PTSD diagnosis in his records. Accordingly, a new VA examination is necessary to determine the Veteran’s psychiatric diagnosis and if the diagnosis is related to his in service heart complaints or any other in service event. 3. Sleep Disability The Veteran asserts that his sleep disability is related to his psychiatric disorder. The Board finds that a VA examination is necessary to determine if the Veteran has a separate, distinct sleep disability that is related to or aggravated by his psychiatric disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his acne. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acne appeared during active service or is related to an incident of service. The examiner should consider the multiple treatment notes in the Veteran’s service records for acne. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician for his psychiatric disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran’s psychiatric disability began during active service, is related to an incident of service, including the Veteran’s in service reports of heart issues and his description of being ridiculed by protestors. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination with an appropriate clinician for sleep disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether the Veteran has a separate, distinct sleep condition or if his sleep issues are part of his psychiatric disability. a.) If the examiner determines that the Veteran has a separate, distinct sleep disability, then the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran’s disability began during active service or is related to an incident of service. b.) If the examiner determines that the Veteran’s psychiatric disability is connected to service and that he has a separate sleep disability, then the examiner must provide an opinion as to: 1. Whether it is at least as likely as not that the Veteran’s sleep disability was proximately due to or the result of his service-connected psychiatric disability. 2. Whether it is at least as likely as not that the Veteran’s sleep disability was aggravated beyond its natural progression by his service-connected sleep disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. Pedro López Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § § 20.1303.