Citation Nr: 21004965 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-10 626 DATE: January 28, 2021 ORDER Entitlement to an initial 20 percent rating for a lumbar spine disability prior to February 21, 2017 is granted. Entitlement to a rating in excess of 20 percent for a lumbar spine disability from February 21, 2017 to November 21, 2019 is denied. Entitlement to a rating in excess of 40 percent for a lumbar spine disability from November 22, 2019 is denied. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy from February 21, 2017 is denied. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy from February 21, 2017 is denied. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from October 9, 2012 to May 8, 2014 is denied. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) from May 9, 2014 to November 10, 2019 is denied. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from November 11, 2019 is denied. Entitlement to an initial rating in excess of 10 percent for a left ankle disability from October 9, 2012 to November 21, 2019 is denied. Entitlement to a rating in excess of 20 percent for a left ankle disability from November 22, 2019 is denied. FINDINGS OF FACT 1. Prior to February 21, 2017, the Veteran’s lumbar spine disability is manifest by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. From February 21, 2017 to November 21, 2019, the Veteran’s lumbar spine disability is manifest by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 3. From November 22, 2019, the Veteran’s lumbar spine is manifest by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 4. From February 21, 2017, the Veteran’s right lower extremity radiculopathy is manifest by no more than moderately severe incomplete paralysis. 5. From February 21, 2017, the Veteran’s left lower extremity radiculopathy is manifest by no more than moderately severe incomplete paralysis. 6. From October 9, 2012 to May 8, 2014, the severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 7. From May 9, 2014 to November 10, 2019, the severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 8. From November 11, 2019, the severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate total occupational and social impairment. 9. From October 9, 2012 to November 21, 2019, the Veteran’s left ankle disability is manifested by no more than moderate limited motion of the ankle. 10. From November 22, 2019, the Veteran’s left ankle disability is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle. CONCLUSIONS OF LAW 1. Prior to February 21, 2017, the criteria for a 20 percent rating, but no more, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. From February 21, 2017 to November 21, 2019, the criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 3. From November 22, 2019, the criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 4. From February 21, 2017, the criteria for a disability rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. 5. From February 21, 2017, the criteria for a disability rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. 6. From October 9, 2012 to May 8, 2014, the criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 7. From May 9, 2014 to November 10, 2019, the criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 8. From November 11, 2019, the criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 9. From October 9, 2012 to November 21, 2019, the criteria for a rating in excess of 10 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 10. From November 22, 2019, the criteria for a rating in excess of 20 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army and Air National Guard from January 2000 to October 2012. This appeal comes before the Board of Veterans’ Appeals (Board) from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2018. The Veteran’s wife was also present and gave testimony. A transcript of the hearing has been associated with the record. This matter was previously remanded in April 2019 for further development, to include requesting the Agency of Original Jurisdiction (AOJ) to obtain VA treatment records and for the Veteran to undergo VA examinations. The treatment records and examinations were obtained; therefore, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 1. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability prior to February 21, 2017 is granted. The Veteran’s lumbar spine disability is assigned a 10 percent prior to February 21, 2017 rating under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a ; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran underwent a VA examination in April 2014. The Veteran reported chronic low back pain without radiculopathy. He further reported he suffered from flare-ups that he described as a throbbing pain of 8 to 9 out of 10 that lasts about 1 hour and occurs 2 to 3 times a week. He indicated the flare-ups impact his ability to function by limiting him to lifting less than 10 pounds, standing for less than 5 minutes, walking for less than 5 minutes, sitting for less than 10 minutes and he had problems sleeping. Upon observation, the Veteran’s range of motion of the lumbar spine was 90 degrees or greater flexion, with painful motion beginning at 80 degrees. His extension was 30 degrees or greater, with painful motion beginning at 25 degrees. The Veteran’s right lateral flexion was 30 degrees or more, with painful motion beginning at 30 degrees or more. His left lateral flexion was 30 degrees or more with painful motion starting at 30 degrees or more. His right lateral rotation was 30 degrees or greater, with painful motion starting at 30 degrees or greater. His left lateral rotation was 30 degrees or greater, with painful motion beginning at 30 degrees or greater. The Veteran’s combined range of motion was limited to 225 degrees because of pain. The examiner noted the Veteran did not have muscle spasms or guarding that resulted in abnormal gait or abnormal spinal contour. In addition, no ankylosis of the spine was noted. The Veteran underwent another VA examination in July 2014. The Veteran reported that in the morning he has difficulty with movement. On a scale of 1 to 10 for pain, he rated his pain as an 8. The Veteran reported flare-up that impacted his function during cold weather, and his pain level would increase to 10 out of 10. Upon observation, the Veteran’s range of motion of the lumbar spine was 90 degrees or greater flexion, with painful motion beginning at 80 degrees. His extension was 30 degrees or greater, with no evidence of painful motion. His right lateral flexion was 30 degrees or greater, with no objective evidence of painful motion. The Veteran’s left lateral flexion was 30 degrees, with painful motion beginning at 25 degrees. His right lateral rotation was 30 degrees or greater, with no evidence of painful motion. His left lateral rotation is 30 degrees or greater, with painful motion beginning at 25 degrees. The Veteran did not have muscle spasms or guarding resulting in an abnormal gait. No ankylosis was noted. The Board acknowledges that the April and July 2014 VA spine examination s do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The VA examiners did not address the impact of flare-ups on the Veteran’s functional impairment and possible additional limitation of motion, despite the Veteran’s reported medical history of flare-ups and functional impairment. In contrast, the February 2017 VA examination of record addressed the requirements of Sharp and indicated pain, weakness, fatigability, or incoordination does not significantly limit the Veteran’s functional impairment with flare-ups. As such, the Board may consider the increased rating claim. A treatment record during the rating period indicates the Veteran’s forward flexion of the lumbar spine was limited by 50 percent without pain to 45 degrees. In addition, his extension was limited by 75 percent with pain to 10 degrees. See August 2014 VA Treatment Record. Based on the evidence of record, the Board finds the Veteran is entitled to an initial increased rating of 20 percent, but no higher, for a lumbar spine disability prior to February 21, 2017. The August 2014 VA treatment record notes the Veteran’s flexion was limited to 45 degrees, which is between the 30 degrees and not greater than 60 degrees required for the assignment of a 20 percent rating. A higher rating is not warranted as the April and July 2014 VA examinations, as well as treatment records do not show that during this rating period the Veteran’s forward flexion of the lumbar spine was 30 degrees or less; or that he had favorable ankylosis of the entire lumbar spine. As such, entitlement to an initial increased rating of 20 percent, but no higher, for a lumbar spine disability prior to February 21, 2017 is granted. 2. Entitlement to a rating in excess of 20 percent for a lumbar spine disability from February 21, 2017 to November 21, 2019 is denied. From February 21, 2017 to November 21, 2019, the Veteran’s lumbar spine disability is rated as 20 percent disabling. In February 2017, the Veteran underwent a VA examination. The Veteran reported his condition had worsened and that he was unable to drive far. The Veteran reported flare-ups that he described as stiffness, increased pain, and locking up of the back. He reported functional loss because he was unable to drive far, sit or stand for prolonged periods and bending. The Veteran’s flexion was 80 degrees, extension 20 degrees, right lateral flexion 30 degrees, left lateral flexion 20 degrees, right lateral rotation 20 degrees, and left lateral rotation 20 degrees. The VA examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran’s functional impairment with flare-ups. The Veteran had localized tenderness, guarding, and muscle spasms that resulted in an abnormal gait. No ankylosis of the spine was noted. The objective medical evidence during this rating period has not shown that the Veteran’s forward flexion of the lumbar spine was 30 degrees or less; or that he had favorable ankylosis of the entire lumbar spine. As such, entitlement to a rating in excess of 20 percent for a lumbar spine disability from February 21, 2017 to November 21, 2019 is denied. 3. Entitlement to a rating in excess of 40 percent for a lumbar spine disability from November 22, 2019 is denied. A July 2020 rating decision increased to the Veteran’s lumbar spine disability to 40 percent disabling effective November 22, 2019. In November 2019, the Veteran underwent a VA examination for his lumbar spine disability. The Veteran reported that he experienced severe lumbar pain with locking in the morning. The Veteran reported flare-ups that were severe in nature and occurred daily. The flare-ups lasted 30 minutes or more. They were precipitated by walking in the mornings, prolonged sitting and walking, bending, and lifting. The Veteran’s lumbar spine disability resulted in functional loss because he had difficulty sleeping, bending, heavy lifting, prolonged sitting, standing, and walking. It was also hard to get for the Veteran to get dressed, jump, and drive for long periods. The Veteran’s forward flexion was 30 degrees, extension 0 degrees, right lateral flexion 5 degrees, left lateral flexion 5 degrees, right lateral rotation 5 degrees, and left lateral rotation was 5 degrees. Pain was noted on examination that causes functional loss. During flare-ups the Veteran’s range of motion is reduced to 25 degrees for flexion, 0 degrees for extension, 5 degrees for right lateral flexion, 5 degrees for left lateral flexion, 5 degrees for right lateral rotation, and 5 degrees for left lateral rotation. The Veteran had guarding or muscle spasms that result in abnormal gait or abnormal spine contour. No ankylosis of the thoracolumbar spine was noted. In order to be entitled to a higher rating of 50 percent for a lumbar spine disability, the rating criteria indicates the Veteran must suffer from unfavorable ankylosis of the entire thoracolumbar spine. The evidence of record for this rating period does not show unfavorable ankylosis of the entire thoracolumbar spine; thus, the Veteran is not entitled to a higher rating. Therefore, entitlement to a rating in excess of 40 percent for a lumbar spine disability from November 22, 2019 is denied. 4. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy from February 21, 2017 is denied. 5. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy from February 21, 2017 is denied. Radiculopathy of the right and left lower extremities are considered to be objective neurological abnormalities associated with the Veteran’s lumbar spine disability. At present, they are both rated as 20 percent disabling from February 21, 2017. The VA examiners from the April and July 2014 VA examinations indicated the Veteran did not have radiculopathy associated with his lumbar spine disability. The VA examiner from the February 2017 VA examination noted the Veteran had radiculopathy that was moderate in severity. The November 2019 VA examiner noted the Veteran had radiculopathy and that it was mild in severity. These conditions are rated under DC 8620 for neuritis of the sciatic nerve. A 10 percent rating is assigned for mild incomplete paralysis, 20 percent for moderate, 40 percent for moderately severe, and 60 percent for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted where there is complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124A. As the severity of the Veteran’s radiculopathy has not been shown by the objective medical evidence of record to be greater than moderate, entitlement to a rating higher than 20 percent is denied. 6. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from October 9, 2012 to May 8, 2014 is denied. The Veteran seeks a higher initial rating than 30 percent for his service-connected PTSD from October 9, 2012 to May 8, 2014. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating higher than 30 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 30 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. A July 2013 VA mental health treatment record noted the Veteran was alert, oriented, and cooperative at his appointment. He was casually dressed with good hygiene and grooming. His gait was normal and psychomotor behavior was generally within normal limits. His conversational speech was fluent and without difficulties in articulation. No significant problems with word finding were noted in the conversation. He was able to follow basic commands and instructions adequately. His general fund of information appeared to be average. His thought form was appropriate with no evidence of formal thought disorder. There was no evidence of significant tangentiality, or flight of ideas noted during the examination. His recent and remote recall was detailed. His thought content was generally appropriate to the situation. He was perceptually intact, with no evidence of auditory or visual hallucinations. The Veteran’s affect was appropriate to the situation and stable, with no indications of acute distress. He described his mood as laid back in the past few weeks. He was behaviorally stable with no evidence of restlessness, agitation, or impulsivity. His social behavior was appropriate to the situation. He endorsed no suicidal or homicidal ideation. His insight was appropriate, and judgment was intact for basic situations. The Veteran underwent a VA examination in March 2014. The VA examiner indicated the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner also noted the Veteran exhibiting the following symptoms: depression, anxiety, and chronic sleep impairment. The Veteran was alert and fully oriented. His speech was at a normal rate, tone, and syntax. His thought content and process were unremarkable. His mood presented as euthymic with full and reactive affect. No observable responsiveness to internal stimuli. Hallucinations and delusions were denied. The Veteran denied suicidal and homicidal ideation, intent, and planning. There was no observable impairment in attention, concentration or memory. The Board finds that the preponderance of the evidence supports a finding that for this rating period, the Veteran’s PTSD had manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, and thus warrants a 30 percent evaluation. The Veteran’s symptoms noted by the March 2014 VA examiner of depression, anxiety, and chronic sleep impairment are contemplated by a 30 percent rating. The Board has also considered the symptoms not listed in the rating criteria and find they more nearly approximate the 30 percent rating as they are not as severe as those listed in the 50 percent rating. The weight of the evidence does not show occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships which would warrant a 50 percent rating. Accordingly, entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from October 9, 2012 to May 8, 2014 is denied. 7. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) from May 9, 2014 to November 10, 2019 is denied. From May 9, 2014 to November 10, 2019, the Veteran seeks a rating in excess of 50 percent for his service-connected PTSD. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. See 38 C.F.R. § 4.130. The Veteran underwent a VA examination in July 2014. The VA examiner noted the Veteran’s PTSD results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The VA examiner further noted the Veteran’s PTSD causes the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, and chronic sleep impairment. The Veteran arrived on time for his appointment. He was well groomed, casually dressed, and ambulated without visible problems. The Veteran underwent another VA examination in March 2017. The VA examiner indicated the Veteran’s level of occupational and social impairment due to his PTSD is reduced reliability and productivity. The VA examiner also noted the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation or mood. The Veteran reported no suicidal or homicidal ideation and no hallucinations or delusions. A December 2018 VA mental health treatment note indicates the Veteran described experiencing panic attacks, seeing a ghost that follows him, and nightmares. The Veteran underwent another VA examination in October 2019. The VA examiner indicated the Veteran was experiencing occupational and social impairment due to his PTSD with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior self-care, and conversation. The VA examiner also noted the Veteran experiences the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; flattened affect; and disturbances of mood and motivation. The examiner noted at the time of his examination, the Veteran was anxious, tense, apprehensive, and physiologically overly aroused. He was somewhat able to maintain day to day functions, but was depressed, pessimistic, and dysphoric. The Veteran struggled with low self-esteem and felt inadequate. He reported unwanted and intrusive memories and nightmares of a disturbing traumatic event. The Veteran was disposed to react in abrupt outbursts of an unexpected and unwarranted nature. He was recklessly reactive and daring, attracted to challenge, risk and harm, as well as unflinching, undeterred by pain and undaunted by danger and punishment. A May 2019 VA treatment record noted the Veteran reported worsening auditory, visual, and tactile hallucinations at night. He felt he was haunted by a demon. He also reported he had been feeling more irritable, more depressed, and anxious for the past two weeks. The Board finds the severity, frequency, and duration of the Veteran’s listed and unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating (occupational and social impairment with reduced reliability and productivity). The July 2014, March 2017, and October 2019 VA examiners did not indicate the Veteran experiences occupational and social impairment greater than reduced reliability and productivity. While the Veteran reported a symptom contemplated by a 100 percent rating for hallucinations of being haunted by a demon at night, the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. In light of this, the Board finds that the weight of the evidence establishes that the Veteran’s hallucinations of being haunted by a demon do not demonstrate the level of impairment associated with a 100 percent rating (total occupational and social impairment) and, rather, more nearly approximates the 50 percent rating occupational and social impairment. As a result, entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) from May 9, 2014 to November 10, 2019 is denied. 8. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from November 11, 2019 is denied. During the pendency of the appeal, a July 2020 rating decision increased the Veteran’s rating for PTSD to 70 percent. From November 11, 2019, the Veteran seeks a rating in excess of 70 percent for his service-connected PTSD. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. See 38 C.F.R. § 4.130. The Veteran underwent a VA examination in November 2019. The VA examiner indicated the Veteran experiences occupational and social impairment as a result of his PTSD with reduced reliability and productivity. The examiner also noted the Veteran experiences the following symptoms: depressed mood; anxiety; panic attacks that occur weekly or less often; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; and suicidal ideation. The Veteran reported significant depression, constant pain and nightmares. He was well oriented with a good fund of knowledge. His attention and concentration were normal with some impairments in common sense. His sleep was okay with medication. He reported some suicidal ideation with no intent. A March 2020 VA treatment record noted no formal or informal suicidal or homicidal ideation. The Board finds the severity, frequency, and duration of the Veteran’s listed and unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating (occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood). The weight of the evidence does not show total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name, which would warrant a 100 percent rating. Accordingly, entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from November 11, 2019 is denied. 9. Entitlement to an initial rating in excess of 10 percent for a left ankle disability from October 9, 2012 to November 21, 2019 is denied. The Veteran seeks a rating in excess of 10 percent for his left ankle disability for the rating period of October 9, 2012 to November 21, 2019. The Veteran’s left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Other diagnostic codes used to evaluate the ankle under the rating schedule include Diagnostic Code 5270 for ankylosis of the ankle, Diagnostic Code 5272 for ankylosis of the subastragalar or tarsal joint, Diagnostic Code 5273 for malunion of the os calcis or astragalus, and Diagnostic Code 5274 for astragalectomy. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Marked” means “having a distinctive or emphasized character”. See www.merriam-webster.com/dictionary/marked. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a ; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Normal range of ankle motion is from 20 degrees of upward dorsiflexion to 45 degrees of downward plantar flexion. 38 C.F.R. § 4.71, Plate II. The Veteran underwent a VA examination in March 2014. His left ankle dorsiflexion was 20 degrees or greater, and his plantar flexion was 35 degrees or greater. No ankylosis was by the VA examiner noted. The Veteran underwent another VA examination in February 2017. The Veteran reported flare-ups of the ankle. He described them as a severe sharp pain that makes it hard to walk sometimes. The Veteran also reported suffering functional loss or impairment because his ankle caused him to be unable to walk, sit, or stand for prolonged periods of time. Despite the Veteran’s complaints, the VA examiner indicated the Veteran’s range of motion of the left ankle was normal. The Veteran’s dorsiflexion was 20 degrees and plantar flexion was 45 degrees. The VA examiner also indicated the Veteran’s range of motion did not decrease with flare-ups. No ankylosis was noted by the VA examiner. After review of the evidence, the Board finds that the Veteran’s left ankle disability more nearly approximates the criteria for a 10 percent rating for this rating period. The Board has considered whether a higher schedular rating under other potentially applicable schedular criteria is warranted during the rating period. Diagnostic Code 5270 provides for a higher rating based on ankylosis of the ankle, but the record indicates that the Veteran does not have ankylosis. There is also no evidence that the Veteran experiences a malunion of the os calcis or astragalus, ankylosis of the subastragalar or tarsal joints, or has undergone an astragalectomy. Accordingly, Diagnostic Codes 5272, 5273, and 5274 are not applicable. 38 C.F.R. § 4.71a. The Board thus finds that the evidence of record shows a “moderate” limitation of range of motion of the Veteran’s left ankle, and therefore a 10 percent disability rating is appropriate. As the weight of the evidence does not demonstrate marked limitation of the range of motion of the Veteran’s left ankle, even during flare-ups or after repeated use, a 20 percent rating is not appropriate. The claim for increased rating must be denied. 10. Entitlement to a rating in excess of 20 percent for a left ankle disability from November 22, 2019 During the pendency of the appeal, a July 2020 rating decision increased the Veteran’s left ankle disability to 20 percent disabling effective November 22, 2019. The Veteran underwent a VA examination in November 2019 for his ankle. The Veteran reported severe pain, pins sensation, locking of the ankle, and that he treated his ankle with prescription medicine and creams. The Veteran reported flare-ups of the left ankle that occur daily and were severe. The flare-ups lasted 30 minutes or more. The left ankle flare-ups are precipitated by waking in the morning, prolonged sitting, standing, and walking. The Veteran reported having functional loss as he was unable to drive for periods longer than approximately one hour at a time due to ankle pain. The VA examiner indicated the Veteran’s left ankle range of motion was 20 degrees for dorsiflexion and 5 degrees for plantar flexion. The VA examiner also indicated that the Veteran’s range of motion itself does not contribute to functional loss. However, pain was noted on examination that causes functional loss in the dorsiflexion and plantar flexion. The examiner indicated that pain, weakness, fatigability, or incoordination significantly limits functional ability with flare-ups. Pain causes functional loss during flare-ups and the Veteran’s range of motion does not change with flare-ups. No ankylosis noted A February 2020 VA treatment record noted the Veteran ambulated into the clinic unassisted and with an antalgic gait pattern. The treatment provider noted a decreased step length on the left. The Veteran’s left ankle dorsiflexion was noted to be 10 degrees, plantarflexion 55 degrees, eversion 15 degrees, and inversion 30 degrees. After review of the evidence, the Board finds that the Veteran’s left ankle disability more nearly approximates the criteria for a 20 percent rating for this rating period, and it is the highest rating under Diagnostic Code 5271. The Board has considered whether a higher schedular rating under other potentially applicable schedular criteria is warranted during the rating period. Diagnostic Code 5270 provides for a higher rating based on ankylosis of the ankle, but the record indicates that the Veteran does not have ankylosis. There is also no evidence that the Veteran experiences a malunion of the os calcis or astragalus, ankylosis of the subastragalar or tarsal joints, or has undergone an astragalectomy. Accordingly, Diagnostic Codes 5272, 5273, and 5274 are not applicable. 38 C.F.R. § 4.71a. (Continued on the next page)   The Board thus finds that the evidence of record shows a “marked” limitation of range of motion of the Veteran’s left ankle, and therefore a 20 percent disability rating is appropriate. No other Diagnostic Code is applicable that would give the Veteran a higher rating. The claim for an increased rating must be denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.