Citation Nr: 20004891 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 16-22 825 DATE: January 22, 2020 ORDER Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is denied. Entitlement to a rating in excess of 20 percent for right ankle degenerative joint disease (DJD) is denied. Entitlement to a rating in excess of 10 percent for right ankle lateral scar is denied. Entitlement to a compensable rating for right ankle medial scar is denied. REMANDED Entitlement to a rating in excess of 10 percent for right ankle laxity is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s symptoms of PTSD manifested in occupational and social impairment with reduced reliability and productivity. 2. For the entire period on appeal, the Veteran’s right ankle DJD did not result in ankylosis. 3. For the entire period on appeal, the right ankle lateral scar has been painful or tender, but not unstable. 4. For the entire period on appeal, the right ankle medial scar has been manifested by objective findings including a linear scar that is neither painful nor unstable. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for a rating in excess of 20 percent for right ankle degenerative joint disease (DJD) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.71a, Diagnostic Codes 5261, 5270 (2019). 3. The criteria for a rating in excess of 10 percent for right ankle lateral scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.118, Diagnostic Codes 7800-7805 (2019). 4. The criteria for a compensable rating for right ankle medial scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.118, Diagnostic Codes 7800-7805 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1985 to March 1993. This case comes before the Board of Veterans’ Appeals (Board) on appeal from June 2013 and August 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board remanded the appeal in October 2018. 1. PTSD The Veteran believes that the symptoms of his PTSD warrant a rating higher than the 50 percent currently assigned. By way of background, the Veteran has been in receipt of service connection since January 2010. In June 2012, the Veteran filed a claim for increased rating. In July 2012, the Veteran was admitted to the hospital for suicidal ideation. He reported that he “gave up” and had stayed in bed, gained weight, and had increased anxiety and nightmares. On the day of admission, the Veteran stated he attempted to walk in front of a car but pulled himself back and went to the hospital. He reported that nightmares about his time in Desert Storm were worsening. He had poor energy and sleep. He stated that it was his third suicide attempt. His first attempt was overdosing, and his second attempt was on a railroad track. The Veteran lived with a roommate. He was divorced and had one daughter and one grandchild. Objectively, the Veteran was alert and fully oriented. His appearance was casual, and his behavior was cooperative. He was able to perform all activities of daily living. Motor activity was within normal limits. His mood was “so-so.” His affect was blunted. His speech was regular, thought content was non-bizarre. He did not hallucinate. Thought process was goal-directed. Judgment and insight were limited. Memory was reduced. Following an October 2012 VA examination, the examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood. The examiner found that those symptoms resulted in occupational and social impairment with reduced reliability and productivity. In his June 2013 notice of disagreement, the Veteran stated that he had nightmares, poor sleep, poor memory and concentration, suicidal feelings, and was “anxious all the time.” During a September 2015 VA PTSD examination, the Veteran reported his relationships with his one daughter and two grandchildren were good. He was close to his mother and sister and talked with them daily. He also reported having two close friends, one of whom he lived with and saw every day, and the other lived out of town and they spoke once a week. He also had three casual friends he saw once a week. The Veteran watched a lot of TV, cleaned, spent a little time on the internet, spent time with his dog, went out to eat once every two weeks, and attended church twice a month. He last worked in 2009; he quit the job because he was having problems with concentration and his ankle. He reported missing four days from work the last year he was employed due to mental health issues. He reported having problems with irritability and was short with inmates, co-workers, and supervisors. He saw a VA psychiatrist and was prescribed medications that sometimes helped with his nightmares; he was hospitalized a couple of times due to problems with nightmares and suicidal ideation. Symptoms included anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran’s mood was dysphoric, and his affect was congruent to his mood. His thought process was logical and coherent, and his speech was a regular rate and rhythm. There was mild evidence of psychomotor agitation. The Veteran was pleasant and cooperative with the examiner. He was neatly dressed and groomed. The Veteran denied current suicidal or homicidal ideation. The examiner found that the Veteran’s symptoms resulted in occupational and social impairment with reduced reliability and productivity. During a July 2019 VA PTSD examination, the Veteran still lived with a roommate. He spent most of his time with his dog, doing yard work, watching TV, on social media, or exercising. He had a couple of friends and he attended church. The Veteran reported nightmares, anxiety, and not smiling very much. He denied anger outbursts. Current medications included Effexor, Prazosin, and Trazadone. Symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. The Veteran was observed to be neatly groomed, alert and fully oriented, calm, verbal, and logical. His mood appeared to be stable and he denied suicidal or homicidal ideation. The examiner opined that the Veteran’s PTSD symptoms resulted in occupational and social impairment with reduced reliability and productivity. A review of the record shows that the Veteran also receives treatment for various disabilities at the VA Medical Center, including for his PTSD. However, a review of VA Medical Center treatment notes of record does not show any indication that the Veteran has symptoms of his PTSD that are worse than those described above. Based on the medical and lay evidence of record, the Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. In this regard, the evidence of record does not demonstrate that the Veteran has obsessional rituals which interfere with routine activities. His speech has not been shown to be abnormal. While he experiences anxiety and depression, it has not been shown to be near-continuous or affecting his ability to function independently, appropriately, or effectively. His reported irritability does not result in periods of violence. He has not been shown to be disoriented or to neglect his personal appearance or hygiene. Additionally, the Veteran has not shown to be unable to establish and maintain effective relationships. In this regard, the Veteran has had a roommate the entire claims period, and he maintains relationships with his daughter, grandchildren, mother, sister, and at least a couple friends. Finally, the VA examination reports did not reflect an assessment of occupational and social impairment with deficiencies in most areas. Indeed, all examiners opined that the Veteran’s symptoms resulted in occupational and social impairment with reduced reliability and productivity. The Board acknowledges that the Veteran has reported suicidal ideations; however, a review of the record does not show that he is a persistent danger to himself. Additionally, while the Veteran has reported difficulty in adapting to stressful circumstances, there is no indication from the record that the symptoms is significant or causes serious impairment. Specifically, the VA examiners have not found the Veteran to have deficiencies in most areas even when those symptoms are considered. Therefore, the Board finds that when the Veteran’s psychiatric disability picture is considered as a whole, his symptoms are not of such a severity so as to warrant the assignment of a higher rating. Therefore, a higher rating for PTSD is not warranted at this time. 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2019). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Right ankle DJD The Veteran asserts that his right ankle DJD warrants a higher rating than currently assigned. He is currently in receipt of a 20 percent rating for “marked” limitation of motion under 38 C.F.R. § 4.71a, DC 5271. During a November 2012 VA examination, the Veteran reported constant pain. He reported flare-ups, described as pain in cold weather. Range of motion testing revealed plantar flexion limited to 15 degrees with painful motion beginning at 0 degrees. Dorsiflexion was limited to 0 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions on the right side. Localized tenderness or pain on palpation of the joints/soft tissue of the right ankle was noted. Muscle strength was normal. There was no ankylosis. There was midline achilles pain on manipulation. The Veteran regularly used a brace. The examiner opined that the ankle condition limited the Veteran to lifting less than 20 pounds, walking less than 100 yards, and standing less than 30 minutes. On September 2015 VA examination, the Veteran reported numbness on the dorsal and lateral foot. He experienced some swelling in the ankle. He had pain in the medial aspect of his ankle. The Veteran did not report flare-ups. He described functional loss as being unable to do things that require a lot of weight bearing on the right ankle. Range of motion testing revealed dorsiflexion limited to 10 degrees and plantar flexion limited to 30 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions on the right side. Range of motion loss contributed to a functional loss, in that the Veteran found it difficult to use his vehicle’s accelerator and brake on occasion due to lack of mobility of the right ankle. Plantar flexion exhibited pain. There was no evidence of pain with weight bearing. There was no objective evidence of pain on palpation or crepitus. The left ankle was normal. Pain, weakness, fatigability or incoordination did not significantly limit functional ability of the right ankle with repeated use over a period of time. There was ankylosis of the right ankle in plantar flexion. There was less movement than normal due to ankylosis, adhesions, swelling and disturbance of locomotion. Muscle strength was normal. MRI of the right ankle showed osteochondritis dissecans of the superior articular talus and postoperative changes of the distal fibula. During a June 2019 VA examination, the Veteran reported that he had inversions going down stairs and walking on unlevel ground. His ankle swelled three times a week with walking. He also experienced flare-ups with rainy, cold, and cloudy weather. The Veteran described his functional loss as being unable to walk more than one quarter of a mile, unable to stand more than 45 minutes, and experiencing pain using car pedals. Range of motion testing revealed dorsiflexion limited to 15 degrees and plantar flexion limited to 35 degrees. Pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing. The Veteran was not able to perform repetitive use testing with at least three repetitions on the right side due to pain. There was tenderness or pain on palpation of the lateral joint. There was no objective evidence of crepitus. The left ankle was normal. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time or during a flare-up. Muscle strength testing revealed active movement against gravity (3/5) in the right ankle on plantar flexion and dorsiflexion. The Veteran did not have muscle atrophy or ankylosis. Range of motion deficits due to pain limitation were noted during examination, and would likely increase to an unknown degree during a flare-up of the condition. The examiner opined that the level of severity of the right ankle disability worsened with worsening of functional abilities. VA treatment records throughout the claims period document complaints of pain, swelling, and stiffness. Based on the above, the Board finds that an increased rating is not warranted for the Veteran’s right ankle DJD. The Board notes that the 20 percent rating assigned to the Veteran for his limitation of motion is the maximum rating available under DC 5261. Higher ratings are only available for ankylosis. See DC 5270. Ankylosis is defined the complete immobility of a joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The medical evidence of record weighs against a finding of ankylosis. Although the 2015 examiner noted ankylosis, the Veteran has been able to move his ankle on all examinations throughout the claims period. Thus, by definition, he does not have ankylosis. In light of the above, the Board finds that the preponderance of the evidence is against the claim and a rating in excess of 20 percent for the Veteran’s right ankle DJD is denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). 3. Right ankle scars The Veteran seeks higher ratings for his scars associated with his right ankle disability. He is currently in receipt of a 10 percent rating for a lateral scar and a noncompensable rating for a medial scar. During a November 2012 VA scars examination, the examiner noted that the Veteran had one painful scar that was tender to touch. There were no scars that were unstable, with frequent loss of covering of skin over the scar. The scar was linear and vertical and located on the lateral ankle. The scar was 3.3 centimeters (cm) long. On September 2015 VA scars examination, the examiner noted a right ankle lateral scar that measured 8 cm long and .5 cm wide. There was also a medial right ankle scar that measured 4 centimeters long. The superficial non-linear scars totaled an area of 10 cm squared. The Veteran indicated that the scar on the lateral aspect of his right ankle was occasionally tender to the touch and caused a numbness sensation. On June 2019 VA scars examination, the examiner measured one scar to be 10 cm long and 3 cm wide, and another scar to be 1.5 cm long and 1.5 cm wide. There was no objective evidence that either of those scars were painful, unstable, or had a total area equal to or greater than 39 square cm. Based on the foregoing, the Board finds that higher ratings for the right ankle scars are not warranted. Regarding the medial scar, the Veteran has not complained of, nor have the objective medical findings supported a painful or unstable scar. 38 C.F.R. § 4.118, DC 7804. As for the lateral scar, the next higher rating requires three or four painful or unstable scars. Consequently, higher ratings must be denied. The Board has considered other potentially applicable diagnostic codes. DC 7800 is inapplicable because it pertains to scars of the head, face and neck. DC 7801 is inapplicable because it pertains to scars that are deep and nonlinear. DC 7802 is inapplicable because it pertains to scars that are nonlinear. Under DC 7805, any other disabling effects not considered may be evaluated under an appropriate diagnostic code. However, the Veteran is already in receipt of disability ratings for limitation of motion and laxity of the right ankle. Therefore, to the extent either scar may cause additional disabling effects, this has already been considered. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). REASONS FOR REMAND The Veteran is in receipt of a separate, 10 percent rating for his right ankle laxity under 38 C.F.R. § 4.71a, DC 5262. Under that code, higher ratings are warranted if the ankle has malunion or nonunion of a joint resulting in moderate or severe ankle disability. The examinations of record indicate that the Veteran has had laxity throughout the claims period. However, no examination explains the severity of the laxity, nor do they explain whether the right ankle has malunion or nonunion of a joint. Consequently, a remand for an opinion is warranted. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current level of severity of the Veteran’s right ankle laxity. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be obtained. The examiner should provide all information required for rating purposes, to specifically include medical findings indicating the severity of the Veteran’s right ankle laxity and whether he has malunion or nonunion of the right ankle joint. 2. Then, readjudicate the issue remaining on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami 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.