Citation Nr: 21002620 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-48 715 DATE: January 14, 2021 ORDER Entitlement to service connection for residuals of traumatic brain injury (TBI) is denied. Entitlement to a 20 percent rating for right ankle disability prior to November 6, 2017 is granted; subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 20 percent for right ankle disability from November 6, 2017 is denied. REMANDED Entitlement to a compensable rating for bilateral photophobia is remanded. FINDINGS OF FACT 1. The evidence of record does not reflect a diagnosis of a TBI, or residuals thereof, during the period on appeal. 2. Prior to November 6, 2017, the Veteran’s right ankle disability was manifested by range of motion to 5 degrees in dorsiflexion and to 25 degrees in plantar flexion, which contributes to functional loss and more closely approximates marked limitation of motion of the right ankle, but without evidence of malunion or ankylosis. 3. From November 6, 2017, the Veteran’s right ankle disability is manifested by range of motion to¬ ¬¬¬5 degrees in dorsiflexion and to 5 degrees in plantar flexion, but without evidence of malunion or ankylosis. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a TBI are not met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (2019). 2. Prior to November 6, 2017, the criteria for a 20 percent rating for right ankle disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5271 (2019). 3. From November 6, 2017, the criteria for a rating in excess of 20 percent for right ankle disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5271 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1984 to February 1987. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2015 and August 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in August 2019. The issues of entitlement to service connection for low back disability, an acquired psychiatric disorder, and left ankle disability were remanded by the Board in August 2019 for further development. In a July 2020 rating decision, the RO granted service connection for degenerative arthritis of the lumbar spine, an acquired psychiatric disorder, and left ankle strain. This represents a full grant of the benefits sought, and the issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The July 2020 rating decision also assigned a 20 percent rating for the Veteran’s right ankle disability, effective November 6, 2017. As the rating periods regarding the issue of right ankle disability prior to November 6, 2017 and from November 6, 2017 are not the maximum allowable, the issues remain on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). The Board’s August 2019 remand directed the RO to obtain any outstanding VA and private treatment records, afford the Veteran VA examinations for his claimed TBI residuals and his service-eye disability, and issue a supplemental statement of the case as to the Veteran’s right ankle disability. The Board finds that there has been substantial compliance with its August 2019 remand directives, and it will proceed with adjudication of the issues on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for residuals of a TBI The Veteran seeks service connection for residuals of a TBI, which he asserts are related to his active military service. Specifically, he contends that his claimed TBI residuals are due to a head injury resulting from a motor vehicle accident during service. Upon review of the relevant evidence of record, the Board finds that service connection for residuals of a TBI is not warranted. The Veteran’s service treatment records are silent for evidence of, treatment for, or a diagnosis of a TBI. While the Veteran was seen in service for neck pain following a motor vehicle accident in August 1986, subsequent in-service annual examinations reflect normal neurological examinations. As the Veteran’s post-service VA treatment records showed reports of headaches in 2017, The Veteran underwent an October 2019 VA examination to assess the etiology of any diagnosed TBI or residuals thereof. Upon examination of the Veteran, the examiner found no evidence a TBI or TBI residuals. On the contrary, while the examiner noted that the Veteran reported mild memory loss and trouble with his attention span, the examiner found that the Veteran’s judgment, orientation, motor activity, communication, and consciousness were normal, and that he had no neurobehavioral effects. The examiner concluded that the Veteran did not have any subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to a TBI, to include headaches. The examiner stated that the Veteran’s claimed head injury from 1986 is self-reported and is not supported by the medical evidence of record. Moreover, he indicated that even if an undocumented head injury was sustained during service, the medical evidence of record reflects that the Veteran has functioned well and has been able to maintain a job for years following separation from service, which does not support a diagnosis of a TBI. Further, post-service treatment records are silent for a diagnosis of or treatment for a TBI. As such, the Veteran has no current disability for which service connection may be granted. In the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here the Veteran has not shown by medical evidence the presence of residuals of a TBI injury. Nor does the evidence establish any physical functional impairment that would suggest a disability even in the absence of a diagnosis. See Saunders v. Wilkie, No. 17-1466 (Fed. Cir. 2018). As the claims file does not show any treatment for or a diagnosis of a TBI, to include residuals thereof, the Veteran’s claim of entitlement to service connection for residuals of a TBI is denied. Taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran’s claim for service connection for residuals of a TBI. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on 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 (2019). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2019). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings 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 (2019). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2019). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 10 percent for right ankle disability prior to November 6, 2017 2. Entitlement to a rating in excess of 20 percent for right ankle disability from November 6, 2017 The Veteran contends that his service-connected right ankle disability warrants higher ratings. Prior to November 6, 2017, this disability is rated as 10 percent disabling under Diagnostic Code 5271(Ankle, limited motion of). From November 6, 2017, this disability is rated as 20 percent disabling under Diagnostic Code 5271. Under Diagnostic Code 5271, a 10 percent rating is assigned for evidence of moderate limited motion of the ankle. 38 C.F.R. § 4.71a. A maximum 20 percent rating is warranted for marked limited motion of the ankle. Id. Full ankle motion includes dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. As the word “marked” is not defined in the VA Schedule for Rating Disabilities, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2019). Rating period prior to November 6, 2017 Turing first to the period on appeal prior to November 6, 2017, based on a review of the relevant evidence, the Board finds that a 20 percent rating for right ankle disability is warranted. The evidence of record supports a finding of marked limitation of motion in the Veteran’s right ankle prior to November 6, 2017. Specifically, during the May 2015 VA examination, the Veteran reported flare-ups in his right ankle affecting his range of motion. The examiner found that range of motion testing conducted during the Veteran’s reported right ankle flare-ups showed dorsiflexion to 5 degrees and plantar flexion to 25 degrees, with functional impairment of the right ankle due to pain, swelling, and range of motion loss. The August 2016 VA examiner also found functional impairment of the Veteran’s right ankle due to pain and range of motion loss, with dorsiflexion to 5 degrees and plantar flexion to 35 degrees as to repetitive range of motion testing. These VA examinations, as well as post-service VA and private treatment records, are silent for evidence of ankylosis or malunion of the right ankle. As previously noted, normal ankle range of motion is to 20 degrees in dorsiflexion and to 45 degrees in plantar flexion. For the period on appeal prior to November 6, 2017, as the Veteran’s right ankle dorsiflexion was, at worst, to 5 degrees in dorsiflexion and, at worst, to 25 degrees in plantar flexion, the Board finds the limited range of motion shown during the May 2015 and August 2016 VA examinations is marked, and therefore, supports an increase in the Veteran’s evaluation of his right ankle disability to 20 percent. Additionally, the Board notes that an evaluation of 20 percent is the highest schedular rating for limitation of motion of the ankle under Diagnostic Code 5271. All potentially applicable codes have been considered; however, the Board finds that no higher rating is warranted under any other diagnostic code. Specifically, as there is no competent medical evidence of record, to include VA examinations and post-service VA and private treatment records, documenting the presence of any ankylosis or malunion in the Veteran’s right ankle, separate ratings are not warranted under Diagnostic Codes 5270, 5272, or 5273. See 38 C.F.R. § 4.71a. Therefore, based on the foregoing evidence, the Board finds that, prior to November 6, 2017, a 20 percent rating for the Veteran’s right ankle disability under Diagnostic Code 5271 is warranted. Period from November 6, 2017 Turning next to the period on appeal from November 6, 2017, based on a review of the relevant evidence, the Board finds that a rating in excess of 20 percent for right ankle disability is not warranted. The evidence of record continues to support a finding of marked limitation of motion in the Veteran’s right ankle from November 6, 2017. Specifically, during the November 2017 VA examination, the examiner found that repetitive range of motion testing reflected dorsiflexion to 5 degrees and plantar flexion to 5 degrees, with functional impairment of the right ankle due to pain, difficulty with prolonged standing, and range of motion loss. Further, the December 2019 VA examination showed reported right ankle flare-ups with dorsiflexion to 5 degrees and plantar flexion to 5 degrees, with functional impairment of the right ankle due to pain and range of motion loss. These VA examinations, as well as post-service VA and private treatment records, are silent for evidence of ankylosis or malunion of the right ankle. For the period on appeal, as the Veteran’s right ankle dorsiflexion is, at worst, to 5 degrees, and his plantar flexion is, at worst, to 5 degrees, the Board finds the limited range of motion shown during the November 2017 and December 2019 VA examinations continues to be marked, and therefore, does not support an increase in the Veteran’s evaluation of his right ankle disability from November 6, 2017. All potentially applicable codes have been considered; however, the Board finds that no higher rating for the Veteran’s right ankle disability is warranted under any other diagnostic code. Specifically, as there is no competent medical evidence of record from November 6, 2017 to the present, to include VA examinations and post-service VA and private treatment records, documenting the presence of any ankylosis or malunion in the Veteran’s right ankle, separate ratings are not warranted under Diagnostic Codes 5270, 5272, or 5273. See 38 C.F.R. § 4.71a. Therefore, based on the foregoing evidence, the Board finds that, from November 6, 2017, a rating in excess of 20 percent rating for the Veteran’s right ankle disability under Diagnostic Code 5271 is not warranted. In sum, entitlement to a rating of 20 percent for right ankle disability prior to November 6, 2017 is granted, and entitlement to a rating in excess of 20 percent for right ankle disability from November 6, 2017 is denied. REASONS FOR REMAND Entitlement to a compensable rating for bilateral photophobia is remanded. Pursuant to the Board’s August 2019 remand directives, the Veteran underwent a VA eye examination in October 2019. While the examiner indicated that the Veteran does not have a visual field defect, corresponding visual field charts for the Veteran’s eyes, reflect possible bilateral visual field defects. However, the visual field chart numbers appear to be incomplete, and the VA examiner did not include their values in the VA examination report, nor did he opine as to whether the any present visual field impairment is attributable to the Veteran’s service-connected bilateral photophobia. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For this reason, the matter is remanded to obtain an addendum medical opinion to attempt to reconcile this discrepancy. The matter is REMANDED for the following action: 1. Send the Veteran’s claims file to the October 2019 VA examiner, if available, otherwise, to an appropriate medical professional, to clarify whether the corresponding October 2019 visual field chart illustrates a contraction of right and/or left eye visual field defect, and if so, provide the specific visual field readings for the Veteran’s right and left eyes. If a diagnosed visual field defect is found as to the October 2019 visual field chart, the examiner is asked to opine as to whether the visual field defect is attributable to the Veteran’s service-connected bilateral photophobia. The Veteran’s electronic claims file must be made accessible to the designated professional for review. A detailed rationale for any opinion expressed should be provided. 2. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, 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.