Citation Nr: 21071437 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-33 897 DATE: November 30, 2021 ORDER Entitlement to a compensable rating prior to March 18, 2016, and a rating higher than 10 percent since, for left lateral collateral ligament sprain under Diagnostic Code (DC) 5271, i.e., based on limited motion of this ankle, is denied. However, entitlement to a separate 10 percent rating, though no higher, is granted prior to March 6, 2020, but not later, for additional left ankle instability, subject to the statutes and regulations governing the payment of retroactive compensation. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disability, is denied. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. Prior to March 6, 2020, the Veteran's left ankle, at most, had slight instability without moderate or marked limitation of motion; since March 18, 2016, his limitation of motion has been no worse than moderate in severity. 2. The most probative (meaning most competent and credible) evidence of record is against finding that the Veteran's service-connected disabilities, either singly or in combination, preclude him from obtaining and maintaining substantially gainful employment. 3. The most probative evidence also is against finding that he had a left knee disability (including arthritis) within a year of separating from active service, or that any such disability is otherwise etiologically related or attributable to his service including caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria are not met for increased ratings for left lateral collateral ligament sprain and consequent limitation of motion. 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. 2. But, resolving all reasonable doubt in the Veteran's favor, the criteria are met for entitlement to a separate 10 percent rating, but no higher, prior to March 6, 2020, but no later, for left ankle instability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5262-5274. 3. The criteria are not met for entitlement to a TDIU. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a) and (b), 4.18, 4.19. 4. The criteria are not met for entitlement to service connection for a left knee disability including secondary to service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1971 to April 1973 and from January 1991 to October 1991. He also had additional periods of service in the reserves until approximately June 2005. These claims were previously before the Board in August 2018, but were remanded back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration including for translation of records, to attempt to obtain private mental health records and Social Security Administration (SSA) records, for verification of military service and association of Federal military records, and for examinations for needed medical nexus opinions concerning the origins of claimed disabilities. There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives at least as concerning the claims being decided. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). January 2020 correspondence from the SSA National Records Center confirms it has no medical records concerning this Veteran. Military records also have been associated with the claims file, but they do not include verification of the Veteran's actual dates, if any, of qualifying service which is relevant to his claim for service connection for a right ankle disability. Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to this determination is resolved in the Veteran's favor. Id. § 4.3. "Staged" ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings irrespective of whether an initial or established rating. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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 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); 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). Further, § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." See Correia v. McDonald, 28 Vet. App. 158 (2016). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. 1. Entitlement to a rating higher than 10 percent for left ankle disability The Veteran's left lateral collateral ligament sprain was rated as 0-percent disabling (i.e., noncompensable) prior to March 18, 2016, and as 10-percent disabling since, under DC 5271. Under DC 5271, ratings are based on whether limitation of motion of the ankle is moderate or marked. These descriptive words "moderate" and "marked" were not defined in the VA Rating Schedule at the time of the earlier rating of this disability. Effective February 7, 2021, however, changes to DC 5271 now define moderate limitation as motion as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion and marked limitation as motion of less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. In addition, under DC 5262 (Tibia and fibula, impairment of), the terms "marked," "moderate," or "slight knee or ankle disability" language for "malunion of have been removed. Under the new rating criteria, "malunion of" the tibia and fibula is now rated under appropriate knee or ankle DCs, "whichever results in the highest evaluation". A February 2012 Disability Benefits Questionnaire (DBQ) reflects that the Veteran reported some giving way sensation. At the time of the examination, he did not have any pain or swelling and stated that the last time when he had noticed left ankle swelling had been a year earlier. On objective physical examination of his left ankle, he had full range of motion with no objective evidence of painful motion. There was no loss of motion upon repetitive use testing, and he did not report flare-ups. He had full muscle strength. There was no laxity upon testing. Upon x-ray, there were no abnormal findings. This evidence does not support that a compensable rating is warranted for limitation of motion. The Court has held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § § 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board additionally notes, however, that the Court has held that § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Moreover, in Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (i.e., noncompensable) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See Id. The 2012 DBQ indicates the Veteran sustained a left ankle strain in 1971, while in service, but that he did not have any consequent pain at the time of that examination, did not report any pain, and did not have any objective evidence of pain on testing. Thus, a 10 percent rating for painful motion is not warranted. A more recent March 2016 DBQ shows the Veteran reported pain in his left ankle joint during ambulation. On testing, he had 0 to 15 degrees of dorsiflexion (normal range is from 0 to 20 degrees), and 0 to 40 degrees of plantar flexion (normal range is from 0 to 45 degrees). See 38 C.F.R. § 4.71, Plate II. Pain was noted on dorsiflexion but did not cause functional loss. He had 4 out of 5 strength in plantar flexion and dorsiflexion. He did not use an assistive device. No instability was suspected. He has a 10 percent rating for "moderate" limitation of motion from this date. But the Board finds that, based on his comparatively extensive range of motion, he does not have "marked" limitation of motion of this ankle so is not entitled to any higher rating. An April 2016 record reflects that he had not had any falls in the last 12 months. The March 2016 DBQ is the earliest evidence upon which it can be determined that his disability met the criteria for a compensable rating (10 percent rating) based on limitation of motion. See Harper v. Brown, 10 Vet. App. 125 (1997). On approximately February 28, 2020, the Veteran sustained a left ankle fracture involving the medial, lateral, and posterior malleolus. On March 6, 2020, he resultantly had surgery for an open reduction internal fixation (ORIF) of his left ankle owing to the trimalleolar fracture. A July 2021 DBQ shows he reported that, in 2021, he had an ankle fusion and bone graft, implant removal, and that he had moderate pain in his left ankle joint. It was noted that there was no left ankle instability upon examination, and he did not have a history of instability. A September 2021 DBQ explains that the Veteran's left ankle fracture, status post surgeries, is less likely than not a progression of his service-connected disability and/or related to his service-connected disability. The examiner pointed out that the Veteran fell from a height, causing the fracture, and that his current condition is unrelated to his service-connected sprain. There is no probative evidence of record contrarily indicating his fall was due to his service-connected disability. Moreover, the evidence does not reflect that his current limitation in ranges of motion or other symptoms are due to his service-connected disability. If it is not possible to distinguish or differentiate the extent of symptoms and consequent impairment that is due to the service-connected left ankle sprain from that instead owing to the post-service fall, then VA adjudicators for all intents and purposes must resolve this reasonable doubt in the Veteran's favor and attribute all symptoms and consequent impairment in question to the service-connected left ankle disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here, though, the record must be read as a whole, and it is apparent that the Veteran's now significant limitation of motion is due to his ankle fusion from the trimalleolar fracture and not, instead, the result of his left ankle sprain in service. There is no probative evidence that his sprain in service has resulted in ankylosis or marked limitation of motion. Thus, an increased rating is not warranted. That said, the Board additionally has considered the Veteran's contention of instability of this ankle. And, as DC 5271 does not address instability (only limitation of motion), entitlement to an evaluation under another DC addressing instability must be considered. To this end, the Board find that the disability may be rated analogous to DC 5262 or 5257, both of which allow for a 10 percent rating for slight ankle disability or akin slight instability of the knee. The examination reports do not reflect instability or laxity upon testing. However, in 2012, the Veteran complained of a history of a sensation of giving way of his left ankle. And the Court has explained that, when determining whether there is instability, the Board cannot categorically favor medical evidence over lay evidence. See English v. Wilkie, 30 Vet. App. 347 (2018). Therefore, based on the Veteran's subjective complaints of this to an examiner, the Board will resolve this reasonable doubt in his favor and grant a separate 10 percent rating for instability of his left ankle. Generally, the effective date of an increase "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore". 38 U.S.C. § 5110 (a); see also 38 C.F.R. § 3.400 (o)(1) (providing that the effective date of an increase will be the date of receipt of claim, or the date entitlement arose, whichever is later). It is possible, however, that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis. See DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011) (holding that "entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition" (citing 38 U.S.C. § 5110 (a)); Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (holding that "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date"). Based on the evidence in this case, the exact time of onset of the Veteran's left ankle instability cannot be determined with any certainty. However, he indicated that he has had some giving way sensation for about 20 years or since at least when he filed his claim. A rating greater than 10 percent is not warranted because the evidence is against concluding there is more than slight instability (that is, from the sprain in service as opposed to the additional injury sustained since service). As noted, the examinations found no instability on joint testing, and there are no clinical records noting instability. The Board gives greater probative weight to the clinical testing by objective and trained clinicians regarding the level of severity of any instability. No examiner has found moderate or severe instability, and the clinical records do not reflect this greater extent of instability, either. The Board also finds that a separate rating for instability is not warranted as of March 6, 2020, the date of surgery. It reasonably can be deduced that the Veteran no longer had instability after that surgery; he has not contended instability; and the clinical records since that fusion surgery do not support instability. Thus, a separate rating of 10 percent for instability is warranted prior to March 6, 2020, but not also since, and no higher rating is warranted. 2. Entitlement to a TDIU The Veteran is in receipt of service connection for right knee osteoarthritis, status post total knee replacement, left lateral collateral ligament sprain (now with instability), and a right knee scar from the surgery. He does not have sufficient ratings to warrant a TDIU on a schedular basis because his combined evaluation (his symptoms are considered as one disability as they involve both lower extremities) is not at least 60 percent, even with the additional 10 percent rating being granted for instability. According to 38 C.F.R. § 4.16(a), the rating must be at least 60 percent; thus, he is only potentially eligible for this benefit instead on an extra-schedular basis under § 4.16(b). And the Board is precluded from assigning an extra-schedular TDIU in the first instance, having instead to first refer the matter to the Director of the Compensation Service for this initial consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). However, it is incumbent on the Board to consider whether this referral is warranted. On November 19, 2021, the U. S. Court of Appeals for Veterans Claims (Veterans Court/ CAVC) issued a precedential panel decision in Snider v. McDonough, No. 19-6707, vacating and remanding a Board decision that had denied an extra-schedular TDIU under 38 C.F.R. § 4.16(b) without first considering whether a referral to the Director of the Compensation Service (Director) was warranted under the standard set forth in Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The main takeaways: Pursuant to Ray, entitlement to an extra-schedular TDIU must be referred to the Director for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable due to service-connected disabilities. When denying an extra-schedular TDIU referral to the Director under § 4.16(b), the Board must make two determinations in its decision: (1) that a referral for extra-schedular TDIU is not warranted under the "reasonable possibility" standard set forth in Ray, and (2) that TDIU benefits are not warranted because the Veteran is not unemployable due to service-connected disabilities. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. So, above and beyond that, there must be indication of inability to work in any substantially gainful capacity for a claim of entitlement to a TDIU to prevail. In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disability, alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. In Ray, the Court held that "substantially gainful employment" contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The Court in Ray also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the Veteran's occupational history, education, skill and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment also may be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. §§ 4.16(a), 4.18. Turning now to this Veteran, on his 2016 VA Form 21-8940, TDIU application, the Veteran said he had been on "Social Security Disability for over 10 years". But VA cannot be compelled to use the Social Security Administration's (SSA's) or any other agency's definition of sedentary work or sedentary employment. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018), and Rouse v. McDonough, No. 19-5699 (U. S. Vet. App. April 13, 2021). Moreover, as already alluded to, SSA records are unavailable since this other Federal Agency has indicated it has no records concerning this Veteran. See Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The evidence reflects that he speaks two languages, has a high school education, and has employment experience as a "tank farm handler" and/or oil refinery operator, which the Board can reasonably find involves manual labor, such as loading and unloading tanker trucks, trailers, and transport, and handling warehouse-related tasks. The Board has considered the evidence and the Veteran's contentions. However, there are many employment positions that someone with his education and employment history could perform even with his disabilities. Notably, his total right knee replacement relieved most, if not all, of his discomfort/pain. An August 2011 VA examination report shows he conceded "his right knee does not bother" him, and he had range of motion from 0 to 115 degrees, with no objective evidence of pain on motion. To give that some context, that means he had normal extension of this knee, to 0 degrees, and well more flexion than is required for even the most minimum 0 percent rating. See 38 C.F.R. § 4.71a, DCs 5260 and 5261. Normal flexion is to 140 degrees, see 38 C.F.R. § 4.71, Plate II, and even the most minimum 0 percent rating under DC 5260 requires flexion limited to 60 degrees, so he has nearly twice that amount of flexion. An April 2012 DBQ shows the Veteran had full range of motion of his right knee with no evidence of pain. An October 2015 DBQ also reflects normal range of motion with no pain noted on examination and no evidence of pain with weightbearing. As already discussed, his service-connected left ankle disability does not cause significant functional impairment, and there is no evidence that his residual scar causes significant functional impairment either. In short, the evidence does not suggest that he could not continue in his prior employment or in other similar employment. While the Veteran may have been unable to maintain substantially gainful employment prior to his total knee replacement (see, e.g., June 2001 private record, and November 2002 private psychiatric report); that was several years before the rating period on appeal and, importantly, his knee symptoms greatly improved after his 2006 surgery. There resultantly is not sufficient evidence tending to substantiate even under the reasonable possibility standard discussed in Ray that the Veteran may be unemployable because of his service-connected disabilities. Moreover, it is not shown that he is unemployable because of his service-connected disabilities. For these reasons and bases, the Board finds that a TDIU is not warranted, including referral of this derivative claim to the Director of the Compensation Service for special consideration on an extra-schedular basis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 C.F.R. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, certain chronic diseases including arthritis will be presumed to have been incurred in service, absent an intervening ("intercurrent") cause, if they were shown as chronic in service or if they manifested to a compensable degree within a year following separation from service, or if they were noted in service (or within the presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). "Active military, naval, or air service" includes active duty (AD) and any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, though not also disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve weekend drills (each of which is usually divided into four, four-hour periods drills) that each Reservist or National Guardsman must perform each month. These drills are deemed to be part-time training. Also, according to 38 C.F.R. § 3.310, service connection may be granted, as well, on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability although in the latter instance compensation is limited to the disability specifically owing to the aggravation. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). 3. Entitlement to service connection for a left knee disability The Veteran contends that he has a left knee disability secondary to his already determined to be service-connected right knee disability. But, for reasons and bases that will be discussed, the Board finds that service connection is not warranted. As already alluded to, the Veteran underwent surgery for total right knee replacement in September 2005 or thereabouts. An August 2011 VA examination report reflects that he maintained that, after his total right knee replacement, he started noticing discomfort in his left knee. He denied trauma to his left knee, but he reported intermittent (on and off) pain and a locking sensation. Despite his contention that he started noticing left knee discomfort after his 2005 total right knee replacement, the evidence contrarily shows the Veteran actually had complaints referable to his left knee several years earlier so before his total right knee replacement. For example, an April 1998 private record cites fragments of left knee medial meniscus were examined; while the reason is not noted, the fact that a sample was taken is indicative of complaints referable to his left knee. Moreover, a July/August 2002 VA radiology report shows he reported bilateral (so left and right) pain. A May 2003 record notes that he had a history of bilateral, severe osteoarthritis, but that his right knee was more so affected. This record notes moderate-to-severe degenerative changes in both knee joints and interarticular calcifications in both popliteal fosse. Thus, prior to the 2005 total right knee replacement, there were both complaints referable to the left knee and even a diagnosis of an underlying disability. The Veteran's contention that pain in his left knee only began after his total right knee replacement is not credible. He has not asserted sustaining left knee trauma during his service (including while on ACDUTRA or INACDUTRA) and the evidence does not reflect a significant injury or chronic complaints in service. There is no probative opinion (i.e., based on review of relevant records and with adequate rationale) indicating the Veteran's left knee disability is as likely as not related to his service meaning directly, presumptively, or secondarily by way of a service-connected disability, including especially his right knee disability. Indeed, to the contrary, a July 2021 DBQ contains the opinion of the examiner that it conversely is less likely than not the Veteran has a left knee disability that is causally related to, or aggravated by, his service-connected right knee disability. The examiner pointed out that, on evaluation, the right knee had excellent range of motion, strength, and stability. Therefore, according to this examiner, the right knee disability less likely than not causes gait disturbances. And, as it does not cause gait disturbances, there would not likely be an adverse effect on the left knee. In other words, this examiner ruled out the notion that overcompensating for the service-connected right knee disability, in turn, has resulted in additional disability referable to the contralateral left knee. Even considering that the Veteran had complaints prior to his right knee surgery, there is no probative opinion that his symptomatic right knee caused or aggravated his left knee disability. The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his left knee disability. This determination is beyond his lay competence. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 4. Entitlement to service connection for a right ankle disability is remanded. As noted above, the Veteran had active service from July 1971 to April 1973, and from January 1991 to October 1991. He also had additional periods of Reserve service. An April 10, 1996 STR reflects that the Veteran sought treatment for right plantar pain for two months with a positive history of a spur problem. The Veteran reported that it was very painful with running and requested a profile. He was assessed with a bone spur and was to have follow up when he returned to Puerto Rico. A December 2002 private record (CIMA) reflects upon x-ray, the Veteran had heel spurs and hallux valgus. A May 2003 VA record notes evidence of degenerative spur formation at the os calcis. A March 2016 DBQ reflects a diagnosis of right ankle calcaneal spur with associated plantar fasciitis. The Veteran's attorney suggests that service connection should be granted based on a March 2016 DBQ. However, the March 2016 VA examiner's opinion lacks probative value because it was based on an assumption that a complaint noted during Reserve service automatically warrants service connection. Merely because a disability is noted during a period of ACDUTRA or INACDUTRA does not mean that the injury was incurred during that time period. In its August 2018 Remand, the Board directed that the Veteran's periods of Reserve service be verified. While the claims file now includes additional military personnel records which were not before the Board at the time of its Remand, the exact dates of the Veteran's service have still not been verified. The Veteran's Master Military Pay Account (MMPA) should be obtained and, thereafter, the examiner should consider the Veteran's statement as to two months of pain and a prior history of a bone spur in rendering an addendum opinion. A clinician should then provide an addendum/supplemental opinion as to whether the bone spur noted in April with a two-month history of complaints as likely as not (50 percent or greater) probability was incurred during a period of service. In addition, the Veteran should be requested to provide record, or authorization for VA to obtain records, from his private orthopedic clinician for 1996. (The April 1996 STR notes that he would follow up in Puerto Rico with "ortho".) 5. Entitlement to service connection for an acquired psychiatric disability The Veteran's Reserve STRs reflect that in July 1997, he reported frequent trouble sleeping since duty in Desert Storm. He denied depression or any other mental disease. A November 2002 private record reflects that in July 2001, the Veteran reported that he developed severe depression due to a worsening physical condition that made it impossible for him to continue working. A March 2003 VA record reflects that the Veteran complained of insomnia, depression, and anxiety on occasions. A January 2004 VA record reflects that he reported that he "began to feel depressed since past two years". It was noted that he had been unable to see his mother for a month due to travel restrictions after 9/11, his brother died a year ago, his sister was recently diagnosed with breast cancer, and the family was undergoing economic pressures. A March 2004 VA record reflects a diagnosis of adjustment disorder with depressed mood. A January 2005 VA clinical record reflects that the Veteran felt depressed due to right knee pain; however, an October 2005 VA clinical record reflects that the Veteran reported that since his knee replacement surgery, he has felt less depressed and irritable. In 2011, the Veteran filed a claim for service connection for sleep disturbance and posttraumatic stress disorder (PTSD). A November 2011 VA examination report reflects that the Veteran had a diagnosis of alcohol dependence, and adjustment disorder with depressed mood. The clinician opined that it was less likely as not that the disabilities were related to the Veteran's service. An October 2016 VA clinical record reflects that the Veteran was assessed with severe alcohol use disorder and alcohol induced depressive disorder. It was noted that he had been drinking excessively since completion of treatment for Hepatitis C. 2017 VA clinical records reflect he was on medication for depression. In its August 2018 Remand, the Board directed that the Veteran be afforded an examination, and a nexus opinion be provided with regard to service connection on a secondary basis for any acquired psychiatric disability (i.e., was it as likely that he had an acquired psychiatric disability due to, or aggravated by, a service-connected disability). A July 2021 DBQ reflects that the Veteran does not have a mental disability; however, this clinical opinion appears to be based on the 2021 examination and does not consider that the Veteran has been diagnosed with a mental disorder (adjustment disorder) during the pendency of his claim. A "current" disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997); but see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). Thus, another opinion is warranted. Accordingly, these remaining claims are REMANDED for the following still additional development and consideration: 1. Request the Veteran's Master Military Pay Account (MMPA) report for the period from January 1, 1995 to April 10, 1996 to ascertain his exact dates of ACDUTRA and INACDUTRA. 2. Ask the Veteran to complete a VA Form 21-4142 for all orthopedic records for right ankle complaints from January 1, 1996 to December 31, 1996. 3. Thereafter, obtain an addendum opinion to the July 2021 DBQ from an appropriate clinician regarding whether it is as likely as not (50 percent or greater probability) the Veteran has a current right ankle disability owing to a period of ACDUTRA or INACDUTRA. The clinician should consider that the Veteran's bone spur was first reported to the military during a period of Reserve service in April 1996, at which time he reported symptoms for two months. The clinician should discuss whether this weighs in favor, or against a finding, that the bone spur originated during a period of service; if so, the clinician should provide the dates during which it originated. In essence, it may be helpful to the Board for the clinician to discuss whether bone spurs are disabilities which form over a short period of time (e.g., a weekend drill) or disabilities that form over time. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, is worsened. 4. Obtain an addendum opinion from an appropriate clinician regarding whether it is as likely as not (50 percent or greater probability) that the Veteran has had, at any time since April 2011, an acquired psychiatric disability including because of a service-connected disability. The examiner should consider, if pertinent: a) the Veteran's Reserve STRs showing that, in July 1997, he reported frequent trouble sleeping since duty in Desert Storm, but denied depression or any other mental disease; b) private records noting that the Veteran reported in July 2001 that he developed severe depression due to a worsening physical condition that made it impossible for him to continue working; c) a March 2003 VA record which reflects that the Veteran complained of insomnia, depression, and anxiety on occasions.); d) a January 2004 VA record which reflects that he reported that he "began to feel depressed since past two years". It was noted that he had been unable to see his mother for a month due to travel restrictions after 9/11, his brother died a year ago, his sister was recently diagnosed with breast cancer, and the family was undergoing economic pressures; e) a March 2004 VA record which reflects a diagnosis of adjustment disorder with depressed mood; f) a January 2005 VA clinical record reflects that the Veteran felt depressed due to right knee pain; g) an October 2005 VA clinical record which reflects that the Veteran reported that since his knee replacement in September 2005, he has felt less depressed and irritable; h) that the Veteran had a right total knee replacement in September 2005 and did not have significant complaints thereafter (see 2012, 2015, and 2021 DBQs); i) a November 2011 VA examination report; j) an October 2016 VA clinical record reflects that the Veteran was assessed with severe alcohol use disorder and alcohol induced depressive disorder. It was noted that he had been drinking excessively since completion of treatment for Hepatitis C; and k) the July 2021 DBQ. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.