Citation Nr: 21005375 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 13-31 482A DATE: February 1, 2021 ORDER Entitlement to an initial 20 percent rating, but no higher, for right ankle bursitis is granted from October 16, 2010. Entitlement to an initial 20 percent rating, but no higher, for left ankle bursitis is granted from October 16, 2010. Entitlement to an initial 70 percent rating, but no higher, for obsessive-compulsive disorder (OCD) with good insight and major depressive disorder with anxious distress, recurrent episode, moderate (herein OCD) is granted from October 16, 2010. REMANDED Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. Entitlement to an initial rating in excess of 30 percent for anemia is remanded. Entitlement to an initial rating in excess of 10 percent for restless leg syndrome, right lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent for restless leg syndrome, left lower extremity is remanded. FINDINGS OF FACT 1. Since October 16, 2010, the Veteran’s right ankle disability has been manifested by decreased motion and pain, characterized by marked limitation of motion, but there is no evidence of ankylosis at any point during the appeal. 2. Since October 16, 2010, the Veteran’s left ankle disability has been manifested by decreased motion and pain, characterized by marked limitation of motion, but there is no evidence of ankylosis at any point during the appeal. 3. Since October 16, 2010, the Veteran’s OCD most nearly approximates occupational and social impairment with deficiencies in most areas but less than total occupational and social impairment. CONCLUSIONS OF LAW 1. Since October 16, 2010, the criteria for a 20 percent rating for the right ankle disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. 2. Since October 16, 2010, the criteria for a 20 percent rating for the left ankle disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5271. 3. Since October 16, 2010, the criteria for a 70 percent rating for OCD, but no higher, are met. 38 U.S.C. §§ 1154(a), 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, DC 9404. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 2003 to October 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A September 2013 rating decision assigned a 30 percent rating for OCD, a 30 percent rating for anemia, 10 percent ratings for right and left knee disabilities, and 10 percent ratings for right and left restless leg syndrome, effective October 16, 2010. In May 2019, the Board denied the Veteran’s increased rating claim for bilateral restless leg syndrome and remanded the matters of entitlement to increased ratings for bilateral ankle, bilateral knee, OCD, and anemia disabilities for additional development. The Veteran thereafter appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in September 2020, the Court granted the parties’ Joint Motion for Partial Remand (JMR) to vacate the Board’s decision and remand the case for readjudication in accordance with the JMR. An August 2020 rating decision awarded a 70 percent rating for OCD, effective August 17, 2012. Increased Ratings Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA’s Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigning ratings referred to as staging ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). By way of background, the current appeal period begins on October 16, 2010, the date service connection was established. 1. An initial 20 percent rating, but no higher, for right ankle bursitis is granted. 2. An initial 20 percent rating, but no higher, for left ankle bursitis is granted. The Veteran is seeking entitlement to an initial rating in excess of 10 percent for her bilateral ankle disability pursuant to Diagnostic Codes 5299- 5271. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned). An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be “99” for all unlisted conditions. Id. Diagnostic Code 5271 evaluates range of motion in the ankle. A 10 percent rating is assigned for moderate limitation of motion, and a 20 percent rating is assigned for marked limitation of motion. Ankle dorsiflexion is measured from 0 degrees to 20 degrees; plantar flexion is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Additionally, Diagnostic Code 5270 evaluates ankylosis of the ankle, Diagnostic Code 5272 evaluates ankylosis of the subastragalar or tarsal joint, Diagnostic Code 5273 evaluates malunion of the os calcis or astragalus, and Diagnostic Code 5274 evaluates astragalectomy, or removal of the talus bone. However, as the record contains no evidence of any of these disabilities as it pertains to the right and left ankle, and the Veteran has not described symptoms that are suggestive of these disabilities, these Diagnostic Codes are not applicable and will be discussed no further. The Board notes that words such as moderate and marked are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be “equitable and just.” 38 C.F.R. § 4.6. Upon review of the totality of the record, the Board finds that a rating of 20 percent is warranted, throughout the appeal period. Specifically, as noted in the February 2011 VA examination report, physical examination revealed dorsiflexion was limited to 10 degrees and plantarflexion to 45 degrees, bilaterally. The Veteran reported moderate weekly flare-ups that were precipitated by exercise, ambulation, and standing for prolonged periods of time. The examiner noted bilateral ankle instability with increase in stiffness, deep pain, and increase of inversion. In the January 2020 VA examination, following use over a period of time, dorsiflexion was limited to 10 degrees and plantarflexion to 30 degrees. The examiner did not suspect ankle instability or dislocation. The Veteran reported bilateral ankle pain that was aggravated by running or prolonged walking. The Board finds that the above-cited evidence more closely approximates a marked ankle disability and warrants the higher 20 percent rating, effective October 16, 2010. VA treatment records and VA examination reports do not contain any clinical findings of ankylosis. See February 2011 and January 2020 VA examination reports. Thus, the preponderance of the evidence is against a finding that the Veteran has bilateral ankle ankylosis. Therefore, she does not meet the rating criteria for an increased evaluation under Diagnostic Code 5270. The Board has also considered the applicability of DeLuca v. Brown, 8 Vet. App. 202 (1995), including whether there is a basis for assigning ratings in excess of 20 percent due to additional limitation of motion resulting from pain or functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59. However, where a Veteran is in receipt of the maximum schedular rating based on limitation of motion of the ankle and a higher rating requires ankylosis, the regulations pertaining to functional impairment (38 C.F.R. §§ 4.40, 4.45, and 4.59) are not for application. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); Correia v. McDonald, 28 Vet. App. 158 (2016). Further, the Veteran has reported flare-ups that cause increased limitation of motion. See February 2011 VA examination report. The Board acknowledges that Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) requires that the examiner estimate the functional loss that would occur during flare-ups; however, as the Veteran is receiving the maximum schedular rating possible under Diagnostic Code 5271 and an increased rating is not warranted without a finding of ankylosis, which as noted above is not demonstrated, a VA examination or opinion that complies with Sharp is not required. Accordingly, for the period since October 16, 2010, a rating of 20 percent, but no higher, is granted. U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 3. An initial 70 percent rating, but no higher, for OCD is granted. The Veteran’s OCD is currently rated 30 percent disabling prior to August 17, 2012, and 70 percent disabling thereafter. She asserts that throughout the entire appeal her OCD has been more severe than the currently assigned ratings and that she is entitled to an increased rating. The Veteran’s OCD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9404. Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned when the psychiatric condition produces occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational or 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, memory loss for names of close relatives, own occupation, or own name. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) After a review of the medical and lay evidence, the Board finds that the criteria for a higher rating of 70 percent are met throughout the appeal, effective October 16, 2010. The evidence shows that the Veteran’s OCD produces deficiencies in most areas due to such symptoms as: suicidal ideation, depressed mood, anxiety, crying spells, suspiciousness, panic attacks, recurrent obsessional thoughts, disturbances of motivation and mood, chronic sleep impairment, mild memory loss, difficulty in adapting to stressful circumstances, and difficulty establishing and maintaining effective work and social relationships. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (“the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.”). Conversely, the Board finds that the Veteran’s symptoms do not more nearly approximate a rating of 100 percent as they are not of such a severity or frequency to result in total occupational and social impairment. In this regard, there is no medical or lay evidence in the record of persistent delusions or hallucinations; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Notably, none of the VA examiners found that the Veteran was totally occupationally and socially impaired. The March 2011 VA examiner described the Veteran as well-groomed, cooperative, with appropriate behavior, and normal psychomotor activity. The January 2020 VA examiner described the Veteran as alert, oriented to person, place, and time, cooperative, tearful at times, with appropriate eye contact and affect. As to social impairment, the Veteran reported that her OCD is a limiting feature in her personal life with family and friends. She reportedly “freaks out” when things are “out of order.” On occasion she will react in public to people coughing without covering their mouths. Although the Veteran described her relationship with her husband of sixteen years as good, she noted that her OCD impacted their relationship. See March 2011 VA examination report. During VA treatment in March 2014, the Veteran reported that she feels anxious, irritated, and overwhelmed at home. The Veteran also endorsed sadness and loss of joy in activities. Id. The Board notes that the Veteran maintained a relationship with her husband and adult children and otherwise demonstrated an ability to maintain some social relationships, despite social impairments. See January 2020 VA examination report. As to occupational impairment, the March 2011 VA examiner noted that the Veteran worked as a staff officer in logistics for the military, which she held since her discharge from active service (5 months prior). During VA outpatient treatment in December 2015, the Veteran reported a “break down” at work three to four weeks prior. She described the break down as “exhausted and tired, frustrated, not getting enough sleep.” The January 2020 VA examiner noted that the Veteran earned a Master of Business Administration in 2009 and a Doctorate Degree in Business Administration in 2017. Notably, the Veteran continues to work as a program analyst for the federal government. During the January 2020 examination, she reported no negative performance evaluations, write-ups, excessive tardiness/absences or negative co-worker relationships. Regarding suicidal ideation, the Veteran reported “some thoughts but no plans” during the March 2011 VA examination. During the January 2020 VA examination, she endorsed passive suicidal ideation without plan, and her last suicidal ideation was one week prior. The Veteran denied homicidal ideations. The January 2020 VA examiner determined that the Veteran was not at imminent risk or danger to herself or others. At other times, the Veteran has consistently denied suicidal ideation. See e.g., November 2013 and December 2015 VA treatment records. During the appeal, the Veteran has endorsed suicidal ideation but has consistently denied any intent of hurting herself or others; thus, the evidence does not demonstrate a persistent danger of the Veteran hurting herself or others. A higher, 100 percent rating is not warranted as the evidence of record does not support a finding that the Veteran has exhibited the level of cognitive, occupational and social impairment that render him totally occupationally and socially impaired as a result of the type of symptoms listed in the general rating schedule or symptoms of a similar degree. There have been no deficiencies identified in the Veteran’s thought processes or communication, nor has there been any indication of disorientation, delusions, or hallucinations, inability to perform activities of daily living, and she has never reported memory loss of the severity contemplated by a 100 percent rating. As such, the preponderance of the evidence shows that the Veteran’s psychiatric symptomatology does not more closely approximate the criteria for a 100 percent disability rating under the general rating schedule for psychiatric disorders. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REMAND REASONS FOR REMAND 4. Entitlement to an initial rating in excess of 10 percent for left knee is remanded. 5. Entitlement to an initial rating in excess of 10 percent for right knee is remanded. Review of the record reveals that the Veteran underwent VA knee examination in March 2011 and January 2020. During the March 2011 VA examination, she reported flare-ups every two to three weeks with unknown precipitating factors. During the January 2020 VA examination, she denied experiencing flare-ups but reported bilateral knee pain that is aggravated by climbing stairs, prolonged sittings, physical activity, running, or prolonged standing. She further endorsed use of ice every day for two hours; however, the examiner did not offer an opinion complaint with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (the examiner should “estimate the functional loss that would occur during flares.”). Accordingly, an updated opinion consistent with the requirements set forth by Sharp is warranted on remand. 6. Entitlement to an initial rating in excess of 30 percent for anemia is remanded. The Veteran was last afforded a VA hematologic examination in January 2020. During her VA examination, she reported symptoms of dizziness and lightheadedness. The January 2020 VA examiner utilized her hemoglobin reading from May 2018, which measured 11.5 grams/100 milliliters. The examiner determined that the lab results were in normal limits. Notably, during VA treatment in August 2020, the Veteran reported anemia symptoms of dyspnea, palpitations, and decreased energy that is worse with menses. A contemporaneous hemoglobin test measured 7.3 grams/100 milliliters. Accordingly, a remand is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of her anemia. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 7. Entitlement to an initial rating in excess of 10 percent for restless leg syndrome, right lower extremity is remanded. 8. Entitlement to an initial rating in excess of 10 percent for restless leg syndrome, left lower extremity is remanded. The Veteran underwent VA examination in February 2011. However, the Board finds that the February 2011 is not wholly adequate to rate the Veteran’s current level of disability. Thus, on remand the Veteran should be afforded a new VA examination. Updated records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Then obtain an addendum opinion addressing the severity of the Veteran’s right and left knee disabilities during a flare-up. No additional examination is necessary, unless the examiner determines otherwise. The examiner is asked to address the following: Considering the Veteran’s reported history and the March 2011 and January 2020 examination reports, please provide an opinion describing functional impairment of the Veteran’s right and left knee during flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, and report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. If an examination is needed for this determination, one should be scheduled. A complete rationale shall be given for all opinions and conclusions expressed. 4. Schedule the Veteran for a VA examination to assess the current nature and severity of her anemia. The claims file should be made available to and be reviewed by the examiner, and all necessary tests should be conducted, with all findings reported in detail. 5. Schedule the Veteran for a VA examination to assess the extent and severity of her service-connected bilateral restless leg syndrome. All studies, tests, and evaluations deemed necessary by the examiner should be performed. All signs and symptoms necessary for evaluating the severity of the Veteran’s restless leg syndrome should be reported in detail. The examiner is advised that the Veteran is competent to report her symptoms and history, and that such reports must be acknowledged and considered in formulating diagnoses and opinions. A complete rationale shall be given for all opinions and conclusions expressed. If the examiner is unable to provide an opinion, he or she should explain why. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, 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.