Citation Nr: 21061688 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 14-44 296 DATE: October 5, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right ankle sprain is denied. Entitlement to an initial 70 percent rating, but no higher, for PTSD during the period prior to November 22, 2019 is granted. Entitlement to a rating in excess of 70 percent for PTSD is denied. FINDINGS OF FACT 1. The Veteran's right ankle sprain is characterized by dorsiflexion limited at worst and upon consideration of pain to 10 degrees during flare ups and plantar flexion limited at worst and upon consideration of pain to 30 degrees. 2. For the entire period on appeal, the Veteran's PTSD has been characterized by persistent anxiety, suicidal ideation, hypervigilance, outbursts of anger, chronic sleep impairment, social isolation, and problems dealing with stressful circumstances. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271, (2021). 2. The criteria for a rating of 70 percent, but not higher, for PTSD for the period prior to November 22, 2019 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2021). 3. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2007 to September 2011. This matter came before the Board of Veterans Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during a June 2019 hearing. The transcript of the hearing is of record. A June 2019 Board decision remanded the issues on appeal for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial rating in excess of 10 percent for right ankle sprain The Veteran contends that he is entitled to an increased rating for her right ankle disability. For the reasons that follow, the Board concludes that a rating in excess of 10 percent is not warranted. The Veteran's right ankle is rated at 10 percent under Diagnostic Code (DC) 5271, which rates limited motion of the ankle. Under the DC, a 10 percent rating is warranted for moderate limited motion of the ankle, which is defined by the regulation as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. A 20 percent rating is warranted for marked limited motion of the ankle, defined by the regulation as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. This is the highest rating available under the DC. 38 C.F.R. § 4.71, DC 5271. The June 2019 Board decision found that the May 2015 VA ankle examination was inadequate, and it will therefore not be addressed herein. A June 2021 VA examination noted that Veteran's reports of moderate to severe flare ups 3 to 4 times per week that made it hard to stand or walk. The examiner found dorsiflexion limited at worst and upon consideration of pain to 10 degrees during flare ups and plantar flexion limited at worst and upon consideration of pain to 30 degrees. Passive range of motion was noted to be the same as active, there was no evidence of crepitus and no evidence of pain on range of motion testing. The examiner found that the right ankle was not ankylosed. At the outset, the Board finds the June 2021 VA examination adequate for appellate review. There is no evidence that the examiner was not competent or credible, and as the report is based on the Veteran's statements, in-person examination and the examiner's observations, the Board assigns it significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the June 2019 Board hearing, the Veteran reported limited motion in his right ankle as well as swelling and throbbing pain. He stated that it hurt to bend during flare ups and that it clicked and popped randomly. The Board notes that the Veteran is competent to report symptoms such as pain and swelling and accords his statements regarding those symptoms significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Again, the Veteran's right ankle is rated at 10 percent for the entire period on appeal. To warrant a 20 percent rating under DC 5271, the evidence would need to show marked limited motion of the right ankle, which again is defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The Board finds that the competent evidence does not support the conclusion that the Veteran has marked limited motion in his right ankle. The June 2021 examiner noted the Veteran's reports of flare ups with pain and problems standing and walking but found that dorsiflexion was limited at worst to 10 degrees during flare ups. Plantar flexion was found to be limited at worst to 30 degrees, including during flare ups, well above the 10 degrees that would warrant a 20 percent rating. As the record does not contain any indication that the Veteran's ankle was limited to the required degree in either dorsiflexion or plantar flexion during the period on appeal, the Board cannot conclude that the Veteran has marked limitation of motion. The Board therefore finds that a rating in excess of 10 percent is not warranted under DC 5271. The Board acknowledges the Veteran's reports of pain, reduced motion and swelling and that he is competent to report such lay-observable symptoms. However, there is no indication that these symptoms result in marked limitation of motion and moderate limited motion due to the Veteran's reported symptoms is encompassed in the 10 percent rating already assigned. The Board has also considered whether a rating under an alternate DC is warranted. However, as the evidence does not indicate that the Veteran's right ankle is ankylosed or involves malunion of os calcis or astragalus, ratings under DCs 5270, 5272, 5273 and 5274 are not warranted. The preponderance of the evidence is against an initial rating in excess of 10 percent for the right ankle. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. 2. Entitlement to an initial rating in excess of 50 percent for PTSD prior to November 22, 2019, and in excess of 70 percent thereafter The Veteran contends that he is entitled to an initial increased rating for PTSD, which is currently rated at 50 percent for the period prior to November 22, 2019, and as 70 percent disabling thereafter. As will be discussed in detail below, the Board finds that a uniform rating of 70 percent, but no higher, is warranted for the entire period on appeal. 38 C.F.R. §§ 4.7, 4.130, DC 9411. For the entire period on appeal, the Veteran has been rated under DC 9411 for PTSD, which is evaluated under the General Rating Formula for Mental Disorders. Under the DC, the criteria for a 50 percent rating are 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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 work like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are 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 of others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. Ratings are assigned according to the manifestation of symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency, and duration, have caused the level of occupational and social impairment associated with a given rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board notes that the presence of suicidal ideation alone conceivably might cause occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. Bankhead, 29 Vet. App. at 19. Period prior to November 22, 2019 The Board finds that the competent evidence shows that prior to November 22, 2019, the Veteran's PTSD was characterized by suicidal ideation, irritability with anger outbursts, hypervigilance with obsessional rituals, and persistent anxiety and depression. Therefore, 70 percent rating, but no higher, is warranted for the period. VA treatment records show PTSD treatment throughout the period. November 2014 records show an admission for inpatient PTSD treatment. The Veteran complained of high anxiety, intrusive thoughts, avoidance, isolation, anger outbursts and hypervigilance. The Veteran endorsed a history of suicidal ideation, including in the prior year, though he denied current thoughts. December 2014 records noted intrusive thoughts, irritability with anger outbursts, hypervigilance, and exaggerated startle. The provider noted anxiety and depression. January 2015 records noted problems with attention, concentration, and short-term memory. The Veteran reported intrusive thoughts to a degree that prevented him from noticing his daughter crying in his lap. He reported an irritable mood, especially when completing tasks, as well as hopelessness. A November 2012 VA examination diagnosed PTSD and found occupational and social impairment with reduced reliability and productivity. The Veteran reported that he freaked out over stupid things, slept with a firearm and a K-bar next to him, checked windows and doors before bed, and did perimeter search in the morning. The examiner found symptoms of anxiety, suspiciousness, chronic sleep impairment, impaired judgement/abstract thinking, disturbances of motivation and mood, and problems with relationships and stressful circumstances. The examiner noted extreme irritability and exaggerated startle. The Veteran denied current suicidal and homicidal ideation, impulses plan, intent, or past attempts. A May 2015 VA examination found occupational and social impairment with reduced reliability and productivity. The examiner found symptoms of anxiety, chronic sleep impairment and disturbances of motivation and mood. The examiner noted that the Veteran was neatly dressed and cooperative with fair eye contact. The Veteran denied suicidal and homicidal thoughts, plans or intent and the examiner noted that he was not suicidal or homicidal in presentation. The examiner found that speech was logical, coherent, and goal-directed and that there were no psychotic manifestations or bizarre behaviors. The examiner opined that the Veteran was stable and in adequate control. A November 2019 VA examination found occupational and social impairment in most areas. The examiner found symptoms of depression, anxiety, suspiciousness, near-continuous panic and depression, chronic sleep impairment, mild memory loss, and problems with work and social relationships. The examiner noted that the Veteran was calm and compliant, and that attention was good. The examiner also noted that the Veteran was socially isolated. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the June 2019 Board hearing, the Veteran reported a history of suicidal ideation. He stated that he had never gone through with anything and did not think he could ever do so, but that he had recurrent suicidal thoughts throughout the entire period on appeal. He also reported panic attacks, spells of depression, that his anxiety level was "through the roof," and that he was constantly on edge. He indicated that he is hypervigilant and felt like someone was out for him, stating that he checks his windows and doors multiple times in the morning and before bed. He also stated that his stress level sometimes caused him to neglect his personal hygiene and he did not shave, bathe, or eat. The Board notes that the Veteran is competent to report symptoms he experiences and accords his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon review of the above, the Board finds that the evidence shows that the Veteran's overall disability picture disability picture more nearly approximated the severity required for a 70 percent rating for the period prior to November 22, 2019. Significantly, the record indicates that the Veteran has had suicidal ideation throughout the period on appeal. At the June 2019 Board hearing, the Veteran submitted competent and credible evidence of suicidal ideation during the entire period. Consistent with his reports, November 2014 VA treatment records noted suicidal ideation dating back through the previous year. As noted above, suicidal ideation alone may cause occupational and social impairment in most areas, consistent with a 70 percent rating. In addition to suicidal ideation, the record during the period prior to November 22, 2019 also shows high levels of persistent anxiety, obsessive behavior associated with hypervigilance such as repeated perimeter checks and sleeping with weapons, and problems adapting to stressful circumstances. The record prior to November 22, 2019 does not show symptoms such as illogical speech, disorientation, or near-continuous panic, but the Board notes that the symptoms list in the general rating formula is non-exhaustive and finds that the overall severity of the Veteran's symptoms for the period prior to November 22, 2019, particularly his history of suicidal ideation, warranted a 70 percent rating. The Board further notes that the Veteran has already been granted a 70 percent rating for the period after November 22, 2019 and finds that the Veteran's symptoms have been essentially consistent throughout the entire period. Again, VA treatment records document that suicidal ideation had been present throughout the period on appeal. A 70 percent rating for the period prior to November 22, 2019 is therefore warranted. 38 C.F.R. § 4.130, DC 9411. Rating in excess of 70 percent Having found that a 70 percent rating is warranted prior to November 22, 2019, there is now a uniform rating for the entire period on appeal. The Board will therefore consider whether a rating in excess of 70 percent is warranted at any point during the appeal period. The Board finds that the preponderance of the evidence is against an evaluation above 70 percent for the period on appeal. The evidence of record does not support the conclusion that the Veteran's overall disability picture more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 100 percent disability evaluation based on total occupational and social impairment. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. That is, the competent evidence of record does not show that the Veteran experiences: gross impairment in thought processes or communication, 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. As noted above, the Veteran's PTSD has been characterized by persistent anxiety, suicidal ideation, hypervigilance, outbursts of anger, chronic sleep impairment, social isolation, and problems dealing with stressful circumstances, all of which are encompassed by the 70 percent rating already assigned. While the Veteran reported neglect of personal hygiene at the June 2019 Board hearing, the record does not contain evidence of the other symptoms associated with a 100 percent rating. While the evidence shows that the Veteran has memory loss and some problems with concentration, the record is silent for any indication that it is of a severity equivalent to forgetting names of close relatives or his own name or occupation as contemplated by a 100 percent rating. The November 2019 VA examination characterized the Veteran's memory loss as "mild." The record also does not indicate a history of harm to himself or others. There is also no indication of impairment of thought processes or communication. The Veteran's speech was consistently noted to be normal and thought processes were consistently noted to be logical and linear. There is no indication that he has delusions or hallucinations or that he exhibits grossly inappropriate behavior. The evidence shows that the Veteran has no history of suicide attempts or homicidal ideation. While the Veteran reported a history of suicidal ideation at the June 2019 hearing, he clearly stated that he never went through with anything and could not do so. Therefore, while the Veteran has a history of suicidal ideation, the record does not show that it constitutes a persistent danger of harm to himself or others. The Board therefore finds that the evidence shows that the Veteran's overall disability picture disability picture more nearly approximates the severity warranting a 70 percent rating. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board finds that the Veteran's overall picture more nearly approximates that of a 70 percent disability rating, and his symptoms do not more nearly reflect the frequency, severity, and duration of symptoms associated with the 100 percent rating. A rating in excess of 70 percent is therefore not warranted. 38 C.F.R. § 4.130, DC 9411. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.