Citation Nr: 21074354 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 20-02 227 DATE: December 15, 2021 ORDER For the initial rating period from December 12, 2017 to January 16, 2020, a higher initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. For the initial rating period from January 16, 2020 to March 23, 2021, a higher initial 70 percent rating, but no higher, for PTSD is granted. For the initial rating period from March 23, 2021 forward, a higher initial disability rating in excess of 70 percent is denied. An increased disability rating in excess of 10 percent for residuals of a right ankle fracture is denied. REMANDED Service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities, is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 23, 2021 is remanded. FINDINGS OF FACT 1. For the initial rating period from December 12, 2017 to January 16, 2020, symptoms of PTSD have manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, without occupational and social impairment with reduced reliability and productivity. 2. For the initial rating period from January 16, 2020 to March 23, 2021, symptoms of PTSD have more nearly approximated occupational and social impairment with deficiencies in most areas, without total occupational and social impairment. 3. For the initial rating period from March 23, 2021 forward, symptoms of PTSD have not manifested in total occupational and social impairment. 4. For the entire rating period on appeal from December 12, 2017, residuals of a right ankle fracture has been manifested by symptoms of painful moderate limitation of motion, without marked limitation of motion, malunion of the os calcis or astragalus, and/or ankylosis of the ankle, subastragalar joint, or tarsal joint, and the Veteran did not undergo an astragalectomy. CONCLUSIONS OF LAW 1. For the initial rating period from December 12, 2017 to January 16, 2020, the criteria for a higher initial disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. Resolving reasonable doubt in favor of the Veteran, for the initial rating period from January 16, 2020 to March 23, 2021, the criteria for a higher initial disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. For the initial rating period from March 23, 2021 forward, the criteria for a higher initial disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. 4. For the entire rating period on appeal from December 12, 20217, the criteria for an increased disability rating in excess of 10 percent for residuals of a right ankle fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1965 until his honorable retirement in February 1997. These matters initially come before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In pertinent part, in November 2020 the Board remanded the issues of (a) service connection for OSA, to include as secondary to service-connected disabilities; (b) a rating in excess of 30 percent for PTSD; (c) a rating in excess of 10 percent for residuals fracture right ankle; (d) an effective date prior to December 12, 2017 for service connection for bilateral hearing loss; and (e) entitlement to a TDIU rating. Thereafter, a May 5, 2021 rating decision increased the 30% rating for PTSD to 70%; and granted a TDIU rating, as well as basic eligibility for Dependents' Educational Assistance, all effective March 23, 2021 (date of VA examination). However, as noted in a May 5, 2021 supplemental statement of the case (SSOC) the matter of entitlement to a TDIU rating prior to March 23, 2021 remains in appellate status. See VBMS entry of May 5, 2021, page 13. The Veteran was notified by RO letter of May 4, 2018, of an April 2018 rating decision which granted service connection for bilateral hearing loss and assigned an initial noncompensable disability evaluation, all effective December 12, 2017. A properly executed VA Form 21-0958, Notice of Disagreement (NOD), was received on March 15, 2019, disagreeing with the initial rating assigned as well as the effective date of the grant of service connection. A statement of the case (SOC) was issued on November 12, 2019 which, in part, addressed entitlement to an initial compensable disability rating for bilateral hearing loss (but, as indicated, not the effective date for service connection). See VBMS entry of November 12, 2019. A timely VA Form 9, Appeal to the Board, was received on January 5, 2020 which, in part, addressed the rating for bilateral hearing loss. As noted, in November 2020 the Board remanded the issue of entitlement to an effective date prior to December 12, 2017 for service connection for bilateral hearing loss because no statement of the case (SOC) had been issued which would allow for perfection of the appeal. Thereafter, on January 29, 2021 an SOC was issued as to the claim for an effective date prior to December 12, 2017 for service connection for bilateral hearing loss. No substantive appeal, VA Form 9 or equivalent, has ever been filed which would have perfected the appeal as to the effective date for service connection for bilateral hearing loss. Accordingly, that matter is not before the Board. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 1. Rating PTSD from December 12, 2017 to January 16, 2020 For the rating period on appeal from December 12, 2017 to January 16, 2020, the Veteran is in receipt of a 30 percent rating for the service-connected PTSD under Diagnostic Code 9411. 38 C.F.R. § 4.130. Pertinent to this case, the General Rating Formula for Mental Disorders provides that a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is provided when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires evidence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." After a review of all the evidence, lay and medical, the Board finds that, for the rating period from December 12, 2017 to January 16, 2020, the service-connected PTSD has resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The PTSD did not cause occupational and social impairment with reduced reliability and productivity; accordingly, a higher initial rating in excess of 30 percent for the initial rating period from December 12, 2017 to January 16, 2020 is not warranted. Of record is a report of a January 16, 2020 evaluation by private psychologist, E. Sadler, Ph.D., conducted by telephonic interview as well as a typed report by that private psychologist. See VBMS entry of October 12, 2020. The typed report summarized supporting lay statements of the Veteran's wife and a friend that had also been a service comrade. Also, some mental health treatment records were cited, such as an August 31, 2017 record that the Veteran had some passive suicidal ideation. However, the Board is persuaded that the report of the April 2, 2018, VA examination gives a better picture of the Veteran's occupational and social impairment prior to the January 16, 2020 private evaluation. See VBMS entry of April 2, 2018. Specifically, at the April 2, 2018 VA psychiatric examination the Veteran's records were reviewed and he was interview in person. The diagnoses were chronic PTSD and an unspecified depressive disorder. The examiner reported that it was possible to differentiate what symptoms were related to each diagnosis. The depressive disorder was manifested by depressed mood, social isolation, and suicidal thoughts. PTSD was manifested by recurrent nightmares, hypervigilance, suspiciousness, panic attacks, and avoidance behaviors. The best summary of the Veteran's occupational and social impairment with regards to all psychiatric disorders was occupational and social impairment with occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. It was possible to differentiate what portion of such impairment was caused by each disorder, as to which the examiner stated that the overall impairment was primarily due to PTSD. With the exception of medical problems, the Veteran had a history of highly effective work performance, although he had been more isolated over the years. His current inability to work was due to his extensive medical problems, which resulted in his having to discontinue employment. However, mental health symptoms had worsened after he left work. The Veteran's family history was extensively related and it was noted that he had a close relationship with his son, adult step-daughter, and second wife, as well as his grandchildren. He had been unable to work since 2013 after developing problems from blood clots in his lungs and legs. His psychiatric symptoms, as observed by his wife, included recurrent nightmares to the point that he had assaulted his wife during sleep at times; hypervigilant behavior (guarded behavior, sleeping with a large stick in his bed); irritability with anger; exaggerated startle response to loud noises, e.g., fireworks; auditory hallucinations of "people talking like you hear in Vietnam." He denied flashbacks but had panic attacks twice weekly, on average. He described suspiciousness. His symptoms of depression included a depressed mood; some degree of social isolation; lack of interest; a more recent history of suicidal thoughts which he attributed to his medical problems, including chronic and worsening pain. He had three fairly close friends. As to marital and family functioning, he avoided social settings, including large family activities during holidays. The Veteran had completed group treatment for PTSD and now took psychotropic medication. He indicated treatment had been successful at times, and at other times his symptoms had significantly increased, indicating that more recently he had had an increase in nightmares. The examiner determined that the Veteran's symptoms were a depressed mood, anxiety, suspiciousness; panic attacks, more than once a week; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. However, at the examination he was clean and neat in appearance. He was alert and oriented. His speech was coherent, and he was logical in thought and speech. He presented with a depressed and anxious mood. He reported symptoms of anxiety and depression. The examiner found that the Veteran was capable of managing his financial affairs. The findings reported at the April 2, 2018 VA psychiatric examination are in keeping with the opinion of that examiner that the Veteran had occupational and social impairment with occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care. While he avoided large family gatherings, he had a good relationship with his immediate family and even had several friends. While lay statements suggest some disorientation and memory loss, this is refuted by the 2018 examination which found no such symptoms, much less memory loss with retention of only highly learned material nor impairment of judgement or impaired abstract thinking as would be expected if he had the level of impairment described in supporting lay statements. The report of the January 16, 2020 evaluation by the private psychologist, E. Sadler, Ph.D., states that the Veteran had only one psychiatric disorder, which was PTSD. The best summary of the Veteran's occupational and social impairment with regards to all psychiatric disorders was occupational and social impairment with deficiencies in most areas, e.g., work, school, family relations, judgment, thinking and/or mood. It was reported that the Veteran's symptoms were a depressed mood, anxiety, suspiciousness; chronic sleep impairment; mild memory loss, e.g., forgetting names, directions or recent events; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; persistent delusions or hallucinations; and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In a typed report the examining private psychologist stated that the Veteran had been married to his current wife for 42 years. His speech was of normal rate, rhythm, and volume. He "sounded" mildly anxious, with a full range of affect. His thought process was logical and linear, with no abnormalities in content. His attention, concentration, and memory were adequate. His insight and judgment were adequate. A more detailed description of his symptoms was reported, including sleep disturbance; hypervigilant behaviors; panic attacks; and startle reactions. He had noticed a decline in his relationships in the last couple of years. The examiner also related a summary of supporting lay statements from a service comrade and friend, as well as the Veteran's wife. The friend had reported that that the Veteran was easily angered and had become disoriented and on many occasions. His wife had reported that he had "auditory/visual hallucinations and nightmares of the traumas." He refused to socialize with family and friends. The examiner stated that the Veteran's PTSD effectively impaired his ability to secure and follow gainful employment and to perform effectively in the workplace. He would be unable to tolerate average workplace stressors, most notably due to an inability to maintain concentration and focus on his work without experiencing increased distress and mood changes. Further, he could become a danger to himself or others if around items that could be used as a weapon. The examiner cited to medical literature relating to PTSD and unemployment. It was opined that his PTSD was more likely than not aggravated by service-connected disorders which promoted social isolation. Thus, "he [was] more likely than not unable to sustain gainful employment since the date of his claim 07/20/2017." Taken in context, this latter statement appears to address the impact not only of the service-connected PTSD but the combined effect of that disorder and the Veteran's other service-connected disabilities and, so, does not establish that a rating greater than 30 percent was warranted since the Veteran file his claim on December 12, 2017. Accordingly, the Board finds that a higher initial rating in excess of 30 percent for PTSD is not warranted for the initial rating period from December 12, 2017 to January 16, 2020. 2. Rating PTSD from January 16, 2020 to March 23, 2021 3. Rating PTSD from March 23, 2021 forward For the initial rating period from January 16, 2020 to March 23, 2021, the Veteran is in receipt of an initial 30 percent rating for the service-connected PTSD under Diagnostic Code 9411. 38 C.F.R. § 4.130. For the initial rating period from March 23, 2021 forward, the Veteran is in receipt of an initial 70 percent rating for the service-connected PTSD under Diagnostic Code 9411. 38 C.F.R. § 4.130. After a review of all the evidence, lay and medical, and resolving reasonable doubt in the Veteran's favor, the Board finds that, for the initial rating period on appeal from January 16, 2020 to March 23, 2021, the service-connected PTSD has more nearly approximated occupational and social impairment, with deficiencies in most areas. The PTSD did not cause total occupational and social impairment. For these reasons, a higher initial rating of 70 percent, but no higher, under Diagnostic Code 9411 is warranted. 38 C.F.R. § 4.130. The Board further finds that for the initial rating period from March 23, 2021 forward, the service-connected PTSD did not, at any time, result in symptoms so severe as to cause total occupational and social impairment to warrant a 100 percent disability rating. A report of S. Etherton, D.O. reflects the result of another telephonic interview on January 17, 2020. See VBMS entry of October 12, 2020. Dr. Etherton rendered an opinion as to the combined effect of the Veteran's PTSD and his other service-connected disabilities, i.e., that they cause him to be unable to maintain substantially gainful employment. The findings and opinion of the January 16, 2020 private psychologist was that the Veteran's PTSD met the criteria for a 70 percent disability rating. While it was reported that the Veteran had persistent delusions or hallucinations, the evidence indicates that in actuality these symptoms more closely resemble the type of flashbacks and intrusive memories which are characteristic of PTSD. Specifically, there is no indication that he has ever had any delusions or hallucinations that have affected his behavior or that he believes in the actual reality of any false delusions or hallucinations. Also, while there is a supporting lay statement that he frequently becomes disoriented, the evidence does not demonstrate that he has ever had any gross impairment in thought processes or communication. Although there is some evidence that he might be a danger as to hurting others, the reports of his having assaulted his wife appear to be no more than his behavior when sleeping and having nightmares. None of the evaluations of record show that he was disoriented or was unable to maintain at least minimal hygiene. Moreover, there is no evidence that he has engaged in grossly inappropriate behavior. This conclusion is supported not only by the findings of the private January 16, 2020 evaluation but also by the VA psychiatric examination on March 23, 2021, at which time the Veteran's records were reviewed. See VBMS entry of April 29, 2021. At that time an examiner concluded that the Veteran's occupational and social impairment due to PTSD was occupational and social impairment with deficiencies in most areas, e.g., work, school, family relations, judgment, thinking and/or mood. It was noted that the Veteran continued to live with his wife but reported their relationship was different because she was more afraid to be around him as a result of his awaking at night from nightmares and hitting her. His relationship with his children was normal. He related having very little patience. He took psychotropic medication. On mental status evaluation he was fully oriented and casually attired. He had a depressed mood, anxiety, suspiciousness. He had near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. He had chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; and a flattened affect. He had difficulty in understanding complex commands; impaired judgment; and impaired abstract thinking. He had disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting. He had suicidal ideation; obsessional rituals which interfere with routine activities; and persistent delusions or hallucinations. In a separate medical opinion, the March 23, 2021 examiner opined that the Veteran's depressed mood, anxiety, suspiciousness, sleep impairment, memory loss, impaired judgment, difficulty with abstract thinking, problems with motivation and mood, and suicidal ideation, negatively impact his social and occupational functioning. The opinion was based on the Veteran's self-report and increase in psychotropic medication. When he was anxious, depressed, suspicious of others, suicidal, sleepy, had difficulty getting along with others, and had trouble with his memory, he was more likely to be isolate and be irritable. He was not productive and found it a challenge to be around others when these symptoms were activated. The examiner also reported agreeing with "Dr. Etherton's assertions" and that the Veteran's mental health symptoms further complicated and reduced his ability to maintain gainful employment. These psychiatric symptoms included depression, anxiety, suspiciousness, sleep problems, memory problems, suicidal ideation, low motivation, and challenges with abstract thought. However, the examiner did not state, nor did Dr. Etherton, that the PTSD was productive of total occupational and social impairment. For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board concludes that for the initial rating period from January 16, 2020 to March 23, 2021, the weight of the evidence demonstrates that the service-connected PTSD has more nearly approximated occupational and social impairment, with deficiencies in most areas, but did not cause total occupational and social impairment. For these reasons, a higher initial rating of 70 percent, but no higher, under Diagnostic Code 9411 is warranted. 38 C.F.R. § 4.130. The foregoing evidence also demonstrates that the PTSD has not resulted in total occupational and social impairment for any period. These psychiatric disorder symptoms are not of similar severity, frequency, and/or duration as to those symptoms contemplated by a 100 percent disability rating. The Veteran was observed during the March 2021 VA examination to be alert and oriented. Other VA treatment records also do no support that the Veteran's social and occupational impairment is total. See e.g., January 2021 VA treatment record (reflecting the Veteran is working on an exercise and diet program at a local gym). Such evidence reflects the Veteran's social impairment is not total. Here, because the Veteran does not have total social impairment, the criteria for a higher initial rating are not met. A 100 percent rating for a psychiatric disorder requires both occupational and social impairment. 38 C.F.R. § 4.130. 4. Rating residuals of a right ankle fracture The Veteran is in receipt of a 10 percent disability rating for residuals of a right ankle fracture for the entire rating period on appeal from December 12, 2017 under Diagnostic Code 5271. 38 C.F.R. § 4.71a. Diagnostic Code 5271 contemplates disability of the ankle manifested by limitation of motion. Under Diagnostic Code 5271, a 10 percent rating is assigned when limitation of motion is moderate, and a 20 percent rating is assigned when limitation of motion is marked. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Under the recently revised rating criteria, effective February 7, 2021, Diagnostic Code 5271 has been updated to specify that a 10 percent rating is assigned when limitation of motion is moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), and a 20 percent rating is assigned when limitation of motion is marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). 38 C.F.R. § 4.71a. After a review of all the lay and medical evidence of record, the Board finds that an increased disability rating in excess of 10 percent is not warranted for residuals of a right ankle fracture. A rating in excess of 10 percent (20 percent) under Diagnostic Code 5271 requires a showing of marked limitation of motion in the right or left ankle. For the entire rating period on appeal from December 12, 2017, residuals of a right ankle fracture has not been manifested by symptoms of marked limitation of motion, as needed for a 20 percent rating, even with consideration of any additional limitation due to pain, stiffness, and swelling. See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca. At a January 2, 2018 VA examination the Veteran complained that his right ankle disability had worsened and he had constant weakness for which he used a brace, as well as flareups consisting of intermittent swelling. See VBMS entry of January 2, 2018. He also related having "turned" his ankle several times. However, at the more recent March 30, 2021 VA rating examination he did not report having instability or having flareups. See VBMS entry April 20, 2021. In fact, both examinations, in 2018 and 2021 found no instability on physical examination. The 2018 examination found some decrease in right ankle strength, being 4/5, but neither examination found any muscle atrophy. Both examinations noted that he used a cane as an ambulatory aid but the evidence also shows that he has never had any right ankle surgery. During the January 2018 examination, the Veteran was not examined during a flareup or after repeated use of the right ankle but he had no ankylosis. He had full active and passive dorsiflexion and plantar flexion of each ankle, with pain on active motion in both planes which did not cause functional loss. There was objective evidence of localized tenderness and pain with weight-bearing and non-weight-bearing but no crepitus. He was able to perform three repetitions of motion without additional loss of motion. During the March 2021 examination he had pain on active and passive motion with plantar flexion being to 20 degrees (normal being to 45 degrees) and dorsiflexion to 5 degrees (normal being to 20 degrees) but the examiner reported that the limited motion did not contribute to functional loss. In comparison, he had full, painless motion of the left ankle. There was no additional loss of motion after three repetitions of observed motion. There was evidence of pain in the right ankle with weight-bearing but not with non-weight-bearing. The examiner found that pain caused functional loss with standing, walking, running, and traversing stairs. There was no objective evidence of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue. He was not examined immediately after repeated use over time or during a flareup but the examiner reported that the procured evidence, including statements from the Veteran, did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated use over time or during a flareup. The January 2018 examiner reported that occupationally, the impact of the right ankle disability was that the Veteran was at a risk for falling; would have difficulty walking more than about 20 feet or carrying more than about 20 lbs. The March 2021 examiner reported that it impacted his ability to perform occupational tasks because of difficulty with prolonged standing, walking, running, and traversing stairs, although it would not impact his ability to perform sedentary work. In sum the Veteran has not had less than 5 degrees of dorsiflexion, which is one-quarter of normal, nor less than 20 degrees of plantar flexion, which is almost one-half of normal. While there is some decreased strength there is no evidence of muscle atrophy or any corroborating clinical evidence of actual instability of the right ankle. Although he has reported using a cane due to his right ankle, the Board notes that a March 15, 2015 Thoracolumbar Spine Conditions Disability Benefits Questionnaire (DBQ) reflects that the Veteran had an antalgic gait due to his low back pain, which is due to his separately service connected degenerative joint disease (DJD) of the bilateral sacroiliac joints with intervertebral disc disease (IVDS), rated 20 percent. In other words, it is reasonable to conclude that he uses a cane because of the combined effect of both service-connected disorders and not just his right ankle disability. For the foregoing reasons, the Board finds that for the initial rating period from December 12, 2017 forward, residuals of a right ankle fracture have not been manifested by symptoms that more nearly approximate limitation of motion to warrant higher initial 20 percent disability rating. Moreover, throughout the entire rating period on appeal from December 12, 2017, residuals of a right ankle fracture have not been manifested by ankylosis, malunion of the os calcis or astragalus, and the Veteran did not undergo an astragalectomy as shown by the various VA examination reports discussed above. Accordingly, the Board finds that an increased rating in excess of 10 percent for residuals of a right ankle fracture under Diagnostic Codes 5270 (ankylosis of the ankle), 5272 (ankylosis of the subastragalar or tarsal joint), 5273 (malunion of the os calcis or astragalus), or 5274 (astragalectomy) is not warranted at any time during the rating period on appeal from December 12, 2017. 38 C.F.R. § 4.71a. REASONS FOR REMAND 1. Service connection for OSA, to include as secondary to service-connected disabilities A report of a Polysomnography in June 2014 from the Southern Sleep Studies Center reflects a physician's impression of OSA. See VBMS entry of July 20, 2017, Medical Treatment Record Non-Government Facility, page 43. It is contended that OSA is due to obesity which resulted from limitations causing a sedentary life due to PTSD and other service-connected disorders, including musculoskeletal disorders, diabetes, and diabetic peripheral neuropathy or medications for service-connected disorders. Of record is a report of a telephonic interview of the Veteran on January 17, 2020 by S. Etherton, D.O., in which it was reported that due to pain from the Veteran's service-connected back disorder and ankle disorder, as well as his peripheral neuropathy and PTSD the Veteran was unable to do light to moderate physical activity and he had become increasingly sedentary which has contributed to his weight gain and resulting obesity. The 2020 Board remand noted that the private opinion stated that "research has shown that psychiatric disorders are commonly associated with obstructive sleep apnea," but did not appear to recognize that an association (or correlation) is not equivalent to proof of causation or aggravation. The Board remanded this matter in November 2020, stating that the private medical opinion was inadequate because service connection could not be granted for obesity but, citing a General Counsel precedent opinion, VAOGCPREC 1 2017, obesity could be an "intermediate step" if (1) service-connected disability(ies) (caused a veteran to become obese/or aggravated a veteran's obesity); (2) if so, whether the (obesity/aggravation of obesity) as a result of service-connected disability(ies) was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability(ies). If these questions are answered in the affirmative, then the current disability [in this case OSA] may be service connected on a secondary basis. Walsh v. Wilkie, 18 0495 (February 24, 2020). The Board remand requested that an examiner to address whether it is at least as likely as not that OSA had onset in, or is otherwise related to, active military service (including as secondary to (caused or aggravated by) his service-connected PTSD and/or other service-connected disabilities). The examiner was not requested to respond to the three questions addressed in VAOGCPREC 1-2017. The Veteran was afforded a Sleep Apnea examination in March 2021. The examiner opined that OSA was less likely than not incurred in or caused by the inservice injury, event, or illness. The rationale was that after a thorough review of service medical records, the examiner was unable to find an encounter that addressed evaluation or treatment of OSA or symptoms of OSA during the Veteran's service. The examiner also opined that OSA was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. The rationale was that the pathophysiology of OSA was characterized by narrowing or collapse of the pharyngeal airway during sleep. It was caused by anatomical variations in the craniofacial features and/or neck. OSA had not been found to be proximately due to PTSD. With respect to aggravation the examiner opined that the medical evidence was not sufficient to support a determination of a baseline level of severity; but regardless of an established baseline, the OSA was not at least as likely as not aggravated beyond its natural progression by PTSD. The rationale was that the pathophysiology of OSA was characterized by narrowing or collapse of the pharyngeal airway during sleep. It was caused by anatomical variations in the craniofacial features and/or neck. The examiner acknowledged that obesity was one of the common causes of OSA. However, the examiner did not address (and had not been requested to address) the three queries set forth in VAOGCPREC 1 2017, i.e., addressing obesity as an "intermediate step." Accordingly, the March 2021 examiner should be requested to address these matters. Accordingly, the case should be returned to the March 2021 examiner to address the questions posed below. If that examiner is not available, obtain the services of another appropriate clinician. If the March 2021 examiner is not available, the matter of whether another appropriate clinician needs to re-examine the Veteran is left to the discretion of such appropriate clinician and if no such re-examination is conducted the Board will assume that it was determined that a re-examination was not needed. 2. Entitlement to a TDIU prior to March 23, 2021 Previously, the Veteran was notified by letter of July 14, 2017, of a July 11, 2017 rating decision which denied a TDIU rating. He did not appeal that decision. Because the grant of a 70% rating for PTSD as of January 16, 2020, and because the outcome of the claim for service connection for OSA, which is being remanded, could impact the claim for a TDIU rating prior to March 23, 2021, adjudication of this claim must be deferred. The matters are REMANDED for the following action: 1. The examiner that conducted the March 2021 Sleep Apnea examination, or another appropriate clinician should review the evidentiary record and address the following additional questions. The clinician must opine on the Veteran's theory that OSA is due to obesity which resulted from limitations causing a sedentary life due to PTSD and other service-connected disorders, including musculoskeletal disorders, diabetes, and diabetic peripheral neuropathy, or medications for service connected disorders. The clinician should opine as to the following: (a) Is it at least as likely as not that the Veteran's service-connected disability(ies), or medications for such disabilities, caused him to become obese/or aggravated his obesity); (b) If so, is it at least as likely as not that his obesity, or aggravation of obesity, as a result of service-connected disability(ies) or medications for service-connected disorders, was a substantial factor in causing OSA; (c) Is it at least as likely as not that OSA would not have occurred but for obesity or aggravation of obesity by the service-connected disability(ies), or medications for service-connected disorders. A rationale for all opinions reached should be set forth. 2. Thereafter, readjudicate the claims for service connection for OSA, and entitlement to a TDIU rating prior to March 23, 2021. E. Choi Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.