Citation Nr: 21069523 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-28 579 DATE: November 18, 2021 ORDER Entitlement to a disability rating in excess of 10 percent disabling prior to January 23, 2020, and in excess of 20 percent thereafter, for service-connected right ankle disability is denied. REMANDED Entitlement to an acquired psychiatric condition, to include depression and post-traumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Prior to the January 23, 2020, the Veteran's right ankle sprain was manifested by no more than moderate limitation of motion. 2. After January 23, 2020, the preponderance of the evidence shows that the Veteran's right ankle disability was not manifested by impairment of the tibia or fibula; ankylosis of ankle; ankylosis of subastragalar or tarsal joint; malunion of the os calcis or astragalus; or an astragalectomy. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent disabling prior to January 23, 2020, and in excess of 20 percent thereafter, for a service-connected right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2009 to June 2013. This matter was previously before the Board in July 2019, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in a November 2020 supplemental statement of the case. The Board finds that VA has substantially complied with the July 2019 Board remand. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of a disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service- connected disability exhibits symptoms that would warrant different ratings). Where entitlement to compensation has already been established, as is the case here, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. A claim is denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Furthermore, any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. Entitlement to a disability rating in excess of 10 percent disabling prior to January 23, 2020, and in excess of 20 percent thereafter, for service-connected right ankle disability A January 2014 rating decision granted entitlement to service connection for a right ankle disability and assigned a 10 percent disability rating under DC 5271 effective June 9, 2013. A November 2020 rating decision increased the Veteran's right ankle disability rating to 20 percent disabling effective January 23, 2020, the date of a VA ankle examination showing an increase in symptoms. Under the version of Diagnostic Code 5271 in effect prior to February 7, 2021, 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. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Words such as "mild", "slight", "moderate", "marked", and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 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. Under the version of Diagnostic Code 5271 in effect from February 7, 2021, marked and moderate limitation of motion are defined. Marked limitation of ankle motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion; moderate limitation of motion is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2021). The other diagnostic codes pertaining to the ankle are unchanged. On VA examination of his ankle in September 2013, right plantar flexion was to 40 degrees, with painful motion beginning 30 degrees, and dorsiflexion to 20 degrees or greater. There was no additional loss of motion or function with repetitive movement. There was tenderness on palpation of the right ankle. Muscle strength was 5/5. There was no joint instability. There was no ankylosis. He did not require assistive devices for ambulation. The impact of the ankle disability on the Veteran's ability to work was limited prolonged standing and walking (more than 2 hours). On VA examination in January 2020, right plantar flexion was to 45 degrees while dorsiflexion was to 0 degrees. There was no additional loss of motion or function with repetitive movement. There was tenderness on palpation of the right ankle. Muscle strength was 5/5. There was no joint instability. There was no ankylosis. The impact of the ankle disability on the Veteran's ability to work was difficulty walking on uneven terrain and with running over one mile. Treatment records are otherwise sparse in the overall record and while they reference the Veteran's right ankle condition, there is no evidence of plantar flexion that would be considered marked or less than 10 degrees, or dorsiflexion less than 5 degrees at any time prior to the January 23, 2020 VA examination. For the period after January 23, 2020, the Veteran in currently in receipt of the highest rating possible under diagnostic code 5271. The Board has also considered all potentially applicable provisions of the rating schedule, whether or not they have been raised by the Veteran or the record, as required by Schafrath, 1 Vet. App. 589. However, the Board has found no section that provides a basis upon which to assign increased disability ratings for any period on appeal. There has been no objective finding of ankylosis of the Veteran's right ankle, subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy; therefore, Diagnostic Codes 5270, 5272, 5273, and 5274 are not for application. Similarly, the Board does not find any additional foot or ankle symptoms consistent with a finding of severe residuals of a foot injury or loss of use of the foot as required for higher ratings under Diagnostic Code 5284. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272-5274, 5284. Again, the Board's findings do not, in any way, suggests the Veteran does not have problems with his ankle. It is important for the Veteran to understand that a disability rating at any level will cause the Veteran problems. The only question is the degree of the problems based on the criteria above. The Board finds the VA examiners' medical findings highly probative to the issue of the severity of the Veteran's right and left ankle disabilities. Specifically, the examiners interviewed the Veteran and conducted a physical examination. Additionally, the examination findings are consistent with other evidence of record, including treatment notes. To the extent the Veteran claims the right ankle disorder is more severe than the currently assigned evaluations reflect, the Board finds that the Veteran as a lay person is competent to report observable symptoms, he experiences through his senses such pain, instability and swelling and rolling of the ankle. Layno, 6 Vet. App. 465; Jandreau, 492 F.3d 1372. However, the Board finds the medical findings, as provided in the examination reports are more persuasive and outweigh the Veteran's statements in support of his claims for higher disability ratings than those currently assigned. As the preponderance of the evidence weighs against the Veteran's claims, there is no reasonable doubt to be resolved, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an acquired psychiatric condition, to include PTSD and depression is remanded. The Board regrets the further delay, but finds that additional development is necessary before a decision may be rendered on the remaining issue on appeal. The Veteran was afforded a VA psychiatric examination in February 2020. The examiner is asked to provide The examiner found that the Veteran did not have an acquired psychiatric disability, to include PTSD. Of note, the Veteran reported that most of the time he feels either happy, sad, depressed, anxious, and sometimes lonely and angry. On examination he had some difficulty with abstract reasoning and reported sleep difficulties, to include nightmares. The Veteran reported occasional suicidal ideation which the examiner noted but did not otherwise acknowledge or discuss. Although the examiner was asked to opine regarding both PTSD and any other psychiatric disorder, the examiner's opinion rationale consisted of "PTSD is not diagnosed, thus the requested opinion is moot." See February 2020 VA examination report. The evidence of record indicates that the examiner failed to record and discuss the particulars of VA treatment records, previous diagnosis, and treatment, as instructed by the Board. Stegall v. West, 11 Vet. App. 268 (1998). As such, a remand is needed to obtain an examination and opinion report that addresses whether the Veteran has any acquired psychiatric condition, to include PTSD and depression, that is etiologically related to his active duty service. The matter is REMANDED for the following action: 1. Associate with the record any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran's representative should submit any new pertinent evidence that the VA/Board does not have. This would greatly help the Board and help expedite the case. 3. Thereafter, schedule the Veteran for a VA mental health examination with an appropriate clinician. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: (a.) Provide any and all diagnoses of acquired psychiatric condition, to include PTSD and depression. (b.) If the Veteran is again not diagnosed with any acquired psychiatric disorder to include PTSD the examiner must articulate the reasoning underpinning this opinion. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. (c.) For each diagnosed acquired psychiatric disorder, if any, provide an opinion as to whether it is at least as likely as not that it had its onset directly during the Veteran's service or is otherwise related to any event or injury during his service. (d.) In providing answers to the above questions the examiner should consider and discuss the service and post-service treatment records. (e.) In providing answers to the above questions the examiner should consider and discuss, among other things, the Veteran's competent lay claims regarding observable symptomatology in and/or since service. (f.) in providing answers to the above questions the examiner should consider, among other things, the fact the Veteran has a confirmed stressor. 4. In providing answers to the above questions the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering all the questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. 5. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). [Remand Directives and formatting] John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.