Citation Nr: 21070506 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-40 775A DATE: November 24, 2021 ORDER Entitlement to a rating in excess of 10 percent from August 1, 2014, to September 9, 2018, for residuals of right ankle cellulitis, is denied. Entitlement to an increased rating of 20 percent, but no higher, from September 10, 2018, for residuals of right ankle cellulitis, is granted. Entitlement to a rating in excess of 10 percent from August 1, 2014, to September 9, 2018, for residuals of left ankle cellulitis, is denied. Entitlement to an increased rating of 20 percent from September 10, 2018, but no higher, for residuals of left ankle cellulitis, is granted. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is denied. FINDINGS OF FACT 1. The Veteran's residuals of left and right ankle cellulitis from August 1, 2014, to September 9, 2018, was manifested by no more than moderate limited motion of the ankle. 2. Beginning September 10, 2018, the Veteran's residuals of left and right ankle cellulitis more nearly approximate marked limited motion of the ankle. 3. The preponderance of the evidence is against finding that the Veteran's acquired psychiatric disorder, to include major depressive disorder, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent from August 1, 2014, to September 9, 2018, for residuals of right ankle cellulitis 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 (DC) 5271. 2. The criteria for entitlement to an increased rating of 20 percent, but no higher, from September 10, 2018, for residuals of right ankle cellulitis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DC 5271. 3. The criteria for entitlement to a rating in excess of 10 percent from August 1, 2014, to September 9, 2018, for residuals of left ankle cellulitis, 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, DC 5271. 4. The criteria for entitlement to an increased rating of 20 percent, but no higher, from September 10, 2018, for residuals of left ankle cellulitis, is granted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DC 5271. 5. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 1983, from February 2003 to January 2004, from July 2004 to May 2005, and from September 2006 to May 2008, with additional service in the Puerto Rico Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) stemming from an August 1, 2014, claim seeking an increased rating for bilateral ankle disabilities (then rated noncompensable) and service connection for depression. In December 2018, the claims were remanded by the Board along with a claim seeking service connection for sleep apnea for further development. Subsequent to the Board remand, the RO granted service connection for sleep apnea in an April 2021 rating decision and assigned a 50 percent disability rating effective August 1, 2014. This being a complete grant of the benefits sought, this claim is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). As to the other issues on appeal, a review of the claims file now shows that there has been substantial compliance with the Board's December 2018 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Preliminary Matters At the outset, the Board finds that the VA's duty to assist has been met. The prior remand was, in part, to obtain to the extent possible any missing military records, particularly pertaining to the Veteran's service with the National Guard. Board notes, despite efforts to obtain all identified and available service treatment and personnel records, it appears there may still be records missing or unavailable. See June 9, 2021 Notification Letter. In such situations, where STRs and personnel records are missing, the Board has a heightened obligation to explain its findings and conclusions, a heightened duty to search for records and explain their efforts to that effect, and a requirement to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law, however, does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. In addition, the VA sent a letter dated June 12, 2019 to the Veteran's current address of record asking for him to provide the above authorization and release or to simply submit the private medical evidence personally. However, as of the date of this decision, no response to the VA's request has been received. The VA has a duty to assist the Veteran in obtaining information, and the Veteran has a duty on his part to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). In this instance, the Veteran must aid in the development of his claim by providing the information as requested. If the Veteran fails to do so, his claim will be decided based on the evidence of record. See 38 C.F.R. § 3.655. The Board further notes, neither the Veteran nor the representative has raised contentions regarding notice or assistance. Accordingly, the duty to notify and assist will not be further addressed. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."). It is further worth noting that while the Veteran has indicated various work-related alterations due to his service connection conditions, he has never alleged his bilateral ankle disability has precluded substantially gainful employment. Indeed, the Veteran has filed a separate claim for TDIU in January 2020 claiming that his "mental health condition", not service-connected, and low back condition, rated at 40 percent disabling, was the cause of his unemployment. This claim was subsequently denied and has not been appealed. It is also noted, the Veteran's employment history indicates that he stopped full time employment with the Puerto Rico National Guard in January 2019 due to "service retirement" with no additional details. See March 2020 Response by Puerto Rico National Guard. Thus, the Board finds a claim seeking a total disability rating based on individual unemployability (TDIU) was not reasonably raised as part of the pending bilateral ankle claim and it will not be further addressed here. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, an effective date for an increased rating claim is generally the date upon which the claim is filed unless it can be factually ascertained based upon all of the evidence of record that an increase in disability occurred and the claim was filed within a year of the date of said increase in disability. 38 C.F.R. § 3.400. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The Veteran contends that his residuals of bilateral ankle cellulitis are entitled to a higher rating due to the functional loss due to pain, repeated motion, swelling, and flare ups that he experiences and has progressively gotten worse. To that effect, he filed a claim for a separate rating increase in August 2014, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See 38 C.F.R. § 3.400(o)(2), Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). The disability was assigned a 10 percent rating in a December 2014 rating decision and has remained so throughout. This increased rating constitutes a partial grant of the benefits sought on appeal; therefore, the issues remain on appeal for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The Veteran's 10 percent rating for residuals of bilateral ankle cellulitis is under diagnostic code (DC) 5271, the criteria for limited motion of the ankle, effective September 23, 2010. See 38 C.F.R. § 4.59, 4.71a, DC 5271. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders including the criteria for limited motion of the ankle under DC 5271. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the AOJ. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Under the pre-amended criteria, DC 5271 provides for limited motion of the ankle to be rated as 10 percent disabling if "moderate" and 20 percent disabling if "marked." Id. The words "moderate" or "marked" are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Effective February 7, 2021, DC 5271 is amended to provide for a 10 percent disability rating for limited motion of the ankle that is "moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion)." A 20 percent disability rating is provided for limited motion of the ankle that is "marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion)." Although not effective until February 7, 2021, the Board finds the definitions of "moderate" and "marked" found in the amended DC 5271 criteria instructive. The words "moderate" and "marked" as defined by Merriam-Webster's dictionary, moreover, help define these terms as "average in amount, intensity, quality, or degree," and "clearly noticeable; evident," respectively. Prior to February 7, 2021, the Board will apply the words "moderate" and "marked" as found under DC 5271 in the most favorable light whether applying the Merriam-Webster dictionary definition in light of the evidence or in light of the range of motion instructions found in the amended version of DC 5271. For purposes of VA compensation, normal dorsiflexion of the ankle is zero to 20 degrees and normal ankle plantar flexion is zero to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. Turning to the relevant evidence of record, the Veteran has consistently reported pain and stiffness in his ankles over the course of his appeal which has progressively gotten worse over time. The Veteran's bilateral ankle condition began while he was in training at Fort Bragg in North Carolina in 2000 when he was bitten by insects resulting in cellulitis. The Veteran has been afforded multiple VA examinations during the period on appeal to determine the severity of his residuals of bilateral ankle cellulitis. In December 2014, the examiner confirmed that the Veteran had a diagnosis of residuals of bilateral ankle cellulitis secondary to chigger bites while in active service. During this examination, the Veteran reported occasional bilateral ankle blisters which get worse with heat or when using boots. The Veteran denied experiencing any flare ups or functional loss. Initial range of motion testing showed dorsiflexion of 0 to 15 degrees and plantar flexion of 0 to 45 degrees for both ankles. Pain was noted upon range of motion testing however, the examiner noted that it did not cause or result in functional loss. There was no pain with weight bearing nor localized tenderness upon palpation. Upon repetitive use, there was no additional loss of range of motion. The examiner noted that the Veteran was examined immediately after repetitive use with no evidence of fatigability, incoordination, muscle weakness, or pain during physical examination. Muscle strength was normal with no atrophy, ankylosis, or ankle joint instability. There was no evidence of shin splints, stress fractures or achilles tendon conditions. No assistive devices were reported and there was no objective evidence of crepitus. Lastly, the examiner noted that there was no functional impact as a result of his residuals of bilateral ankle cellulitis. In June 2015, another VA ankle examination was conducted. At which time, the Veterans diagnosis of residuals of bilateral ankle cellulitis was confirmed. The Vet reported that he continues to experience occasional pain at the ankle joints with no flare ups or functional loss or impairment of the joint. Initial range of motion testing revealed normal movement of the ankles with dorsiflexion 0 to 20 degrees and plantar flexion of 0 to 45 degrees. Pain with dorsiflexion was noted during examination but did not result in or cause functional loss. There was no evidence of pain with weight bearing, no crepitus, or localized tenderness upon palpation. Upon repetitive use, no additional loss of range of motion was noted after three repetitions. With repeated use over time, the examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Unfortunately, the examiner was unable to provide an opinion or estimation of additional loss of range of motion "without mere speculation". Muscle strength and stability testing was normal with no reported atrophy, ankle joint instability, nor ankylosis. No shin splints, fractures, or achilles conditions were reported and no use of assistive devices. The examiner concluded that the Veteran is "limited to a sedentary type of job with the following restrictions: no prolonged standing or prolonged ambulation activities". Another VA ankle examination was conducted in September 2018. At which time, the Veteran's diagnosis of residuals of bilateral ankle cellulitis was again confirmed. During this examination, the Veteran reported tightness in his ankles which "limits his upwards and downwards movement" of his ankles. He started that his ankles are very sensitive to touch and any little trauma to his ankles is magnified as a result. The Veteran further reported that he now experiences flare ups with increased pain related to standing and walking. Functionally, the Veteran reported that he experiences decreased range of motion and decreased endurance for standing and walking. Initial range of motion testing revealed dorsiflexion of 0 to 10 and 0 to 35 degrees of plantar flexion for both ankles. Pain was noted on examination but was indicated as not resulting in or causing functional loss. There was no reported evidence of pain with weight bearing or crepitus. Objective evidence of localized tenderness or pain upon palpation at the medical and lateral malleoli and anterior ankle joint. Repetitive use testing revealed no additional loss of function or range of motion after three repetitions. For repeated use over time, the examiner stated the examination was neither consistent or inconsistent with the record and noted that pain would limit functional ability over time. Unfortunately, the examiner once again could not describe in terms of range of motion without speculation because "Veteran was not currently in a flare up or being observed with repeated use over time". The same opinion was provided for flare ups, again noted pain would cause additional loss of function. Muscle strength and instability testing was normal with no muscle atrophy, ankle instability, or ankylosis reported. There was no indication that assistive devices were used as a result of his ankles and the examiner opined that there would be no functional impact as a result of his condition. Lastly, the examiner remarked that there was evidence of pain with passive range of motion testing as well as with non-weight bearing. The Veteran was afforded his last VA ankle examination in March 2021. Once more the Veteran's current diagnosis of residuals of bilateral ankle cellulitis was confirmed. During this examination, the Veteran reported that his ankles are swollen, and his skin is very sensitive to the point that if anything touches them it causes him pain 4-5 out of 10 all day for two days. He further reported that when his ankles or feet are touched this causes a small wound or mark that will take time to heal, and he cannot wear anything that squeezes his ankles or feet. His ankles become tense so he cannot move them up or down, cannot put on his shoes, his range of motion and stamina are decreased, has trouble walking, going up and downstairs, and standing. For pain he takes the same medication as for his low back: Meloxicam. The Veteran also reported experiencing moderate flare ups with the same symptoms as noted above precipitated by standing and walking. Initial range of motion testing revealed dorsiflexion of 0 to 10 degrees with plantar flexion of 0 to 30 degrees for both ankles. Range of motion itself was noted by the examiner as contributing to functional loss. Specifically, the reduced range of motion prevents the Veteran from putting on shoes and makes walking, standing, and going up and down stairs difficult. Passive range of motion was noted as being the same as with active with pain noted upon both plantar flexion as well as dorsiflexion. Evidence of pain was also noted with non-weight bearing, active and passive motion. This pain was reported as causing functional loss and was elicited with touch and limits the Veteran's ambulation and with putting on footwear. There was no evidence of crepitus and with observed repetitive use, no additional loss of range of motion was noted. With repeated use over time, the examiner indicated that pain, fatigability, weakness, and lack of endurance would result in additional loss of function or range of motion. The examiner estimated this additional loss of range of motion to reflect dorsiflexion at 0 to 5 degrees with plantar flexion of 0 to 25 degrees, a loss of an additional 5 degrees of range of motion. Regarding flare ups, the examiner's opinion mirrored that of with repeated use over time. Additional factors contributing to the Veteran's disability were noted as interference with standing, swelling, and disturbance of locomotion. Muscle strength was noted as normal with no atrophy. There was no reported ankylosis and ankle joint stability testing was also normal. The examiner indicated that the Veteran had no history of ankle surgeries, use of assistive devices, or shin splints, fractures or achilles issues. The examiner remarked "there is a worsening of the Veteran's symptoms however no change in service connection diagnosis and no additional diagnoses have been rendered". Lastly, the examiner opined that the "Veteran must avoid jobs that require constant plantar flexion and inversion, excessive external rotation of the ankle". Later in March 2021, an addendum medical opinion was provided by the VA examiner. This opinion simply clarified the estimated range of motion after repetitive use over time and with flare ups. Once again, the examiner reported range of motion endpoints to be 5 degrees of dorsiflexion and 25 degrees upon plantar flexion. At the outset, the Board finds the March 2021 VA examination, taken in conjunction with records of medical treatment and lay statements of symptoms, is an adequate basis upon which to determine the extent and severity of the Veteran's bilateral ankle disabilities. The September 2018, June 2015, and December 2014 VA examinations failed to assess whether additional functional limitation or ROM loss occurred with repeated use over time. The September 2018 VA examination failed also failed to assess whether additional functional limitation or range of motion occurred with the Veteran's reported flare ups. As a result, the Board in December 2018 remanded the claim and ordered a new VA examination. However, while not independently adequate for rating purposes, the Board notes the earlier VA examinations may still have probative value for determining the Veteran's symptoms during the period on appeal. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding "Furthermore, even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight."). While the earlier VA examinations lacked appropriate consideration and impact of reported flare-ups and repeated use over time, the Veteran's lay statements and March 2021 VA examination sufficiently suggest the impact of flare-ups and repeated use over time on the Veteran's condition. Given the totality of the information, including the Veteran's own descriptions of his limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed by the March 2021 VA examination. DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158. 1. Entitlement to a rating in excess of 10 percent from August 1, 2014 to September 9, 2018, for residuals of right ankle cellulitis, is denied. 2. Entitlement to an increased rating of 20 percent, but no higher, from September 10, 2018 for residuals of right ankle cellulitis, is granted. 3. Entitlement to a rating in excess of 10 percent from August 1, 2014 to September 9, 2018, for residuals of left ankle cellulitis, is denied. 4. Entitlement to an increased rating of 20 percent from September 10, 2018, but no higher, for residuals of left ankle cellulitis, is granted. Based on the above, the Board finds the evidence of record presents a disability picture that more nearly approximates a 20 percent disability rating under DC 5271 for marked limited motion of the bilateral ankles beginning September 10, 2018, but not earlier. The September 2018 VA examination revealed initial range of motion limited to 0 to 10 degrees dorsiflexion with pain on passive as well as non-weight testing. Manifestations of the Veteran's ankle disability that the Board finds to be evidence of "marked" limited motion i.e., "clearly noticeable; evident,", include objective evidence of localized pain and tenderness upon palpation with functional loss resulting in decreased range of motion and decreased endurance for standing and walking. Furthermore, during the September 2018 VA examination, the Veteran for the first time reported that his ankles became very sensitive to touch and "any little trauma" to his ankles is magnified. Under both the pre- and post- February 2021 amended criteria, the findings of the September 2018 VA examination report would support a 20 percent rating for the bilateral ankles, which is the maximum rating allowable under DC 5271. In contrast, medical evidence prior the September 2018 VA examination noted less severe findings, such as the June 2015 VA examination report indicative of "normal" range of motion upon testing with reported "occasional" pain at the ankle joints. While some loss of motion is noted in earlier VA examinations, along with complaints of pain and "tightness" the Board finds these complaints are more indicative of "moderate" or "average in amount, intensity, quality, or degree" in comparison to the findings in the September 2018 VA examination report. Until the September 10, 2018 VA examination, there is simply no medical evidence of record indicative of "marked" limited motion to warrant an increased rating. In short, the Board finds an increased rating to 20 percent is warranted from September 10, 2018, for both the right and left ankles, but no earlier and no higher. In contrast, a rating greater than 10 percent prior to September 10, 2018, is not warranted for either the left or right ankle disability. In so concluding, the Board has also considered the other relevant DCs for the ankle including DC 5273 and DC 5274 but finds they are not applicable as the record lacks any evidence of malunion of os calcis or astragalus or astragalectomy. As previously mentioned, a 20 percent disability rating under DC 5271 is the maximum schedular rating available. To warrant a higher rating, the Veteran's ankle disabilities must be manifested by ankylosis under DC 5270. While all of the VA examinations found the Veteran's ankles were not ankylosed, consideration must still be given to whether he is functionally ankylosed in either the left or right ankle (or both). Chavis v. McDonough, 34 Vet. App. 1 (2021). 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). Here, the Veteran has not contended, nor does the record suggest the Veteran's ankles are immobile. While the Veteran's ankles have limited motion, it is not fixed. Indeed, the Veteran has acknowledged that he is able to use his ankles, but it is limited during flare-ups, occasional swelling, and due to pain. Thus, a separate or alternate rating under DC 5270 for ankylosis of the ankle is not warranted. As outlined above, the Veteran's bilateral ankle disabilities are fully capable of evaluation under the rating schedule. Prior to September 10, 2018, however, a rating greater than 10 percent, for either ankle is not warranted. From September 10, 2018, however, the Board finds the evidence supports "marked" limited motion and, therefore, an increased rating of 20 percent for the left and right ankle is granted. 5. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is denied. Generally, service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Entitlement to benefits may be found through direct service connection by establishing: "(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," also known as the nexus element. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All information, lay evidence, and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Turning to the relevant evidence of record, the Veteran's military personnel records indicate he was a cargo specialist and an infantryman in the U.S. Army and afterwards, with the Puerto Rico Army National Guard. The Veteran served during Operation Noble Eagle and Enduring Freedom with service in Kuwait from September 2003 to December 2003. He also served in Cuba from August 2004 to April 2005 and in Egypt from January 2007 to December 2008. Upon entrance into service, the Veteran was clinically evaluated as normal with no indication of any mental health condition. Available service treatment records are silent for any complaints, treatment, or diagnosis of a mental health condition. In December 2014, the Veteran underwent a VA Mental Disorders examination at which time he was diagnosed with major depressive disorder. During this examination, the Veteran reported that he was referred to a psychologist in 2012 because his supervisor at work complained that he was too irritable. The Veteran further reported that he was under a lot of stress while deployed to Egypt because he was fighting for custody of his two children at the time and "could not concentrate on his work due to this". The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood along with low frustration tolerance and tearful at times without knowing why. Ultimately, the examiner provided a negative nexus opinion for the Veteran's major depressive disorder based on the four-year gap between his military service and his first psychiatric treatment supported further by the Veteran's own report that his stressor was personal in nature and not related to his military service, i.e., child custody. As noted in the introduction, attempts to obtain the mentioned private psychiatric records, including those from Dr. D.D.'s office dating from 2012 to 2014, have been unsuccessful. The VA sent a letter dated June 12, 2019 asking the Veteran to provide said records or sign a waiver and release so the VA could obtain them on his behalf. Unfortunately, there has been no response received by the Veteran. As such, the claim must be decided on the evidence of record. See 38 C.F.R. § 3.655; see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Treatment records subsequent to the December 2014 VA examination indicate ongoing mental health treatment. For instance, an April 2015 psychiatric evaluation noted diagnoses of anxiety disorder and major depressive disorder. The Veteran also reported beginning psychiatric treatment in 2013 after a partial psychiatric hospitalization. In January 2017, a psychiatric progress note again listed the Veteran's diagnoses as general anxiety disorder and major depressive disorder. In February 2017 the Veteran was afforded a VA posttraumatic stress disorder (PTSD) examination. At which time, the Veteran's reported stressor event was "a lot of bad things happened there in Cuba and Kuwait". The examiner noted that the Veteran's general stressor was adequate to support the diagnosis of PTSD but was not related to the Veteran's fear of hostile military or terrorist activity. Ultimately, the examiner declined to diagnosis the Veteran with PTSD because his symptoms did not meet the requirements of criterion B, C, D, and G under the DSM-V. The examiner noted current symptoms of anxiety, chronic sleep impairment, disturbances of motivation and mood. The February 2017 examiner was also asked to provide a nexus opinion as to any diagnosed psychiatric conditions. The examiner opined "there is no evidence of psychiatric complaints, findings, nor treatment prior to military service...during military service...nor within one year after discharge". He explained that the "Veteran sought psychiatric care in 2013" and the Veteran's stressor was identified as "labor issues". In conclusion, "a link between the Veteran's claimed military combat activity cannot be made". Further research into the Veteran's alleged stressors was never completed and is not found to be required here because the Veteran failed to provide enough information or any specifics as to the time frame or to the exact nature of the event in service to warrant such research. Furthermore, the examiners of record have indicated that his reported stressors are related to general work matters such as "labor issues" and other personal matters such as child custody disputes, not service. Additionally, the February 2017 examiner declined to diagnose the Veteran with PTSD because his symptoms and reported stressors failed to meet several criteria under the DSM-V. The Board finds the February 2017 and December 2014 VA examinations include consideration of the Veteran's medical history and set forth all pertinent findings, such that the Board is able to make a fully informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). When considered with the entire evidence of record, the Board finds the examination reports adequate for adjudication of the Veteran's service connection claim because they were based upon an accurate medical history and provided explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). At the outset, the Board notes the Veteran previously contended that he suffers from anxiety, depression, and PTSD. In light of Clemons, however, the Board has considered all of the Veteran's contended acquired psychiatric conditions in relation to his service connection claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (recognizing that the Secretary "has no duty to read the mind of the claimant" but should "construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim). Upon review, the record shows only a confirmed diagnosis of major depressive disorder. As such, the Board finds that the Veteran has a current diagnosis of major depressive disorder only. However, the medical evidence of record does not establish a qualifying event, injury, or disease occurred in service nor is there a positive nexus opinion. While the Veteran has reported various stressors including "labor issues", child custody matters, as well as the general claim of "a lot of bad things happened there in Cuba and Kuwait"; no such connection to his current mental health conditions has been shown nor claims supported by his STRs or military personnel file. Further, while the Board acknowledges the Veteran is competent to report his symptoms, he is not competent to render a nexus opinion as it is a medically complex question requiring specialized medical knowledge and training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's STRs lack reference to, treatment of, or a diagnosis of any mental health condition. To this point, the Board finds highly probative the December 2014 VA examination which noted the four-year gap between service and the first reported psychiatric treatment. More importantly, the examiner explained that the Veteran's last deployment was to Egyptian Sinai in 2007 to 2008 in which the Veteran himself reported he was under severe stress due a custody dispute. Between separation from service and the beginning of treatment in 2012 to 2013, the record lacks complaints of symptoms in relation thereto. In fact, it was not until 2012 that the Veteran first sought mental health treatment at the behest of his then supervisor. This was over four years after separation from service. After a reported seven day stay in the hospital in 2012, for psychiatric treatment, the Veteran has reported getting treatment from Dr. D.D., whose records have never been able to be obtained due to the Veteran's unresponsiveness. The Veteran's contention that his current mental health symptoms are related to service are unsubstantiated by the medical and lay evidence of record. The record lacks any complaints or treatment regarding symptoms of major depressive disorder until at the earliest 2012, almost four years after separation from service. As such, the theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, the October 2014 and February 2017 VA examiners stated that the Veteran's current symptoms, including anxiety and depression, have no nexus to service, which the Board finds highly probative. The Veteran's STRs lack any reference to treatment or diagnosis of a mental health condition. The Board again notes, while the Veteran is competent to report symptoms, he is not competent to provide a diagnosis or nexus to service. Thus, the Board relies upon the competent medical evidence of record in finding a nexus to service has not been established. Based on the aforementioned, the Board determines the preponderance of the evidence is against an award of service connection for an acquired psychiatric disorder, to include major depressive disorder. As such, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.