Citation Nr: 21016204 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 15-33 536 DATE: March 22, 2021 ORDER The appeal challenging the propriety of the reduction of the disability evaluation from 10 percent to a noncompensable rating from October 1, 2014 through August 4, 2015 for service-connected left-ankle disorder is denied. REMANDED Entitlement to an initial compensable disability evaluation for bilateral-foot skin disorder is remanded. Entitlement to service connection for headaches, to include migraine headaches, is remanded. FINDING OF FACT The objective medical evidence shows left-ankle range of motion findings for plantar flexion and dorsiflexion in the period of October 1, 2014 through August 4, 2015 first indicated improvement, then further findings confirmed sustained improvement, with the reasonable certainty the improvement will be maintained under the ordinary conditions of life, after which period, the 10 percent rating was restored from August 5, 2015. CONCLUSION OF LAW Restoration of the 10 percent disability evaluation from October 1, 2014 through August 4, 2015 for service-connected left-ankle disorder is not warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from November 1994 to October 2002 and from October 2002 to July 2006. In January 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters were previously the subject of a Board decision. It was appealed to the Court of Appeals for Veterans Claims (Court) and the matters have been returned to the Board for further review. An August 2015 rating decision restored the Veteran’s 10 percent evaluation from August 4, 2015 for service-connected left-ankle disorder. In his substantive appeal and in his contentions at two hearings on appeal, the Veteran has indicated that he thought his left ankle should have been rated 10 percent disabling throughout the period and not reduced. As such, the matter of a rating in excess of 10 percent is not before the Board. Increased Schedular Ratings 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. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2019). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126–27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The evaluation of the same disability under several diagnostic codes, known as “pyramiding,” must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2019). Propriety of the reduction of the disability evaluation from 10 percent to a noncompensable rating from October 1, 2014 through August 4, 2015 for service-connected left-ankle disorder. The Board’s May 2019 decision denied the above claim challenging reduction. Upon the Veteran’s appeal to Court, the Court vacated the denial and remanded the claim to the Board in August 2020 for action consistent with the terms of the Joint Motion for Remand (JMR) filed by the parties. The parties agree that the Board erred when it failed to provide an adequate statement of reasons or bases regarding entitlement to restoration of the 10 percent left-ankle rating from October 2014 through August 2015. Specifically, although the Board found restoration was not warranted because the evidence of record confirmed the improvement first indicated in the September 2012 VA examination, the Board did not adequately discuss whether the evidence establishes it is reasonably certain left-ankle improvement would be maintained under the “ordinary conditions of life.” Additionally, the JMR notes, although there may have been an improvement in terms of a range of motion testing, the Veteran’s ability to function under the ordinary conditions of life was essentially the same with respect to how the ankle was affected in the mornings and the impact it had on movement in daily life. As the Court has vacated the Board’s May 2019 denial, the Board therefore will review again the evidence of record as to the propriety of the reduction, to include proper notice and improvement, as well as whether it is reasonably certain such improvement would have been maintained under the ordinary conditions of life in the period of the reduction. In its April 2014 rating decision, the Agency of Original Jurisdiction (AOJ) proposed to reduce the Veteran’s 10 percent rating for left-ankle disorder to a noncompensable rating. This reduction was accomplished in the July 2014 rating decision, effective October 1, 2014. A set of procedural safeguards governing rating reductions is outlined in 38 C.F.R. § 3.105, which are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). In the instant case, the AOJ procedurally complied with 38 C.F.R. § 3.105, regarding the manner in which the Veteran was given notice of the proposed rating reduction and the implementation of that reduction. Notice of the proposed rating reduction, including the evidentiary basis for this proposal, was provided to the Veteran in an April 15, 2014 notification letter. This notice also informed the Veteran that he could submit additional evidence to show that the compensation payments should not be reduced and advised him of his right to request a pre-decisional personal hearing. As the Board finds the AOJ has fulfilled its procedural requirements set forth under 38 C.F.R. § 3.105 for rating reductions, the Board will now consider the propriety of the rating reduction itself. At the time the reduction became effective, October 1, 2014, the 10 percent rating for left-ankle disorder had been continuously in effect for a period of over 5 years. As such, the provisions of 38 C.F.R. § 3.344 (a) and (b) are applicable. Those provisions provide that, when a veteran’s schedular rating has been both continuous and stable for 5 years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as the examination used to establish the higher evaluation. A rating in effect for more than 5 years will not be reduced on the findings of any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. The rating agency must also take into consideration whether the evidence makes it reasonably certain the improvement will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, supra. In considering the propriety of a reduction, the Board must focus on the evidence available to the AOJ at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the AOJ’s reduction was warranted. See Brown v. Brown, supra; Kitchens v. Brown, supra (1995). The Veteran’s left-ankle disorder is rated under Diagnostic Code 5271, under which a 10 percent rating is warranted with moderate limitation of motion and a 20 percent rating is warranted with marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2020). The Board will briefly note here that recent revisions to the rating criteria under Diagnostic Code 5271 are effective only from February 7, 2021 and are therefore inapplicable in the period of reduction at issue for this claim. Additionally, when an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more movement or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2017); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Turning to the record, because, as stated above, the Veteran’s schedular rating was continuous and stable for over 5 years, the examination on which the reduction is based must be at least as full and complete as the examination used to establish the original higher rating for the reduction to be proper, the Board therefore will first look to the January 2007 VA general medical examination, on which the January 2007 rating decision which followed based its grant of service connection for left-ankle disorder at a 10 percent evaluation. That examination’s findings showed range of motion for left-ankle plantar flexion was normal at 0 to 50 degrees, but left-ankle dorsiflexion was limited at 0 to 3 degrees (normal is 0 to 20 degrees), with pain beginning in both maneuvers at the above measurements. The January 2007 VA examiner found no left-ankle pain on motion and no additional limitation of motion on repetitive use due to pain, fatigue, weakness, or lack of endurance. He further found there was no left-ankle ankylosis. He noted the Veteran’s reports of left-ankle stiffness, swelling and “snapping.” That day’s x-rays showed “no evidence of fracture, dislocation, or acute bony abnormality. Ankle mortise is intact. Soft tissue structures are unremarkable.” Although the January 2007 VA examiner found fracture residuals of the left fibula, he made no finding of the left ankle being affected. In September 2012, the Veteran underwent a VA examination for ankle conditions, in which the VA examiner stated a 2003 diagnosis of “status post fracture, left ankle (distal fibula)--well healed.” She noted the Veteran’s report of current symptoms of stiffness, aching with weather changes and some instability at times. Range of motion measurements showed left-ankle plantar flexion at 45 degrees (45 degrees, normal) and left-ankle plantar dorsiflexion at 10 degrees (20 degrees, normal). There was no evidence of painful motion. The Veteran did not report flare-ups which impacted ankle function. Additionally, September 2012 x-rays were negative for the left ankle, showing no fracture or dislocation, an intact ankle mortise and unremarkable tissue structures. The September 2012 VA examiner further found the Veteran’s left-ankle disorder did not impact his ability to work and noted the Veteran was riding his motorcycle that day, presumably to the examination, and he commented that it “is a nice day for it.” The Board notes again it is not the Veteran who bears the burden of demonstrating entitlement to retention of the higher evaluation, but rather the burden of proof is on VA to establish reduction is warranted by the weight of the evidence. Brown v. Brown, 5 Vet. App. at 418; Kitchens v. Brown, 7 Vet. App. 320 (1995). The September 2012 VA examination findings show normal left-ankle plantar flexion, reduced dorsiflexion, no evidence of painful motion, no reports by the Veteran that flare-ups impacted left-ankle function, and no radiographic evidence of a left-ankle disorder. Based on the foregoing, the Board cannot reasonably find the foregoing exhibits either moderate or marked limitation of motion under Diagnostic Code 5271. However, in an effort to afford the Veteran every opportunity for restoration of the 10 percent evaluation in the relevant period, the Board will also look to the series of related or analogous diagnostic codes, under which ratings can also be awarded. Although Diagnostic Code 5262, addressing impairments of the tibia and fibula, has been revised, the revisions are effective only as of February 7, 2021. Therefore, the revised version is not applicable to the evidence in the reduction period at issue of October 2014 through August 2015. The pre-revision version provides a 10 percent rating for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is available for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating will be assigned with nonunion of the tibia and fibula, with loose motion, requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. On examination, the September 2012 VA examiner made no findings whatsoever of left-knee tibial or fibular impairment. Therefore, this diagnostic code can offer no higher rating to the Veteran. Diagnostic Code 5270 provides a 20 percent evaluation for ankylosis of the ankle in plantar flexion at less than 30 degrees. A 30 percent evaluation is warranted for ankylosis in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion, between 0 and 10 degrees. A 40 percent evaluation is potentially available with ankylosis in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Diagnostic Code 5272 evaluates ankylosis of the subastragalar or tarsal joint, at 10 percent for a good weight-bearing position and at 20 percent for a poor weight-bearing position. The Board will briefly note here that ankylosis is “immobility and consolidation of a joint due to disease, injury, [or] surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing SAUNDERS’ ENCYCLOPEDIA AND DICTIONARY OF MEDICINE, NURSING, AND ALLIED HEALTH at 68 (4th ed.1987)). However, the September 2012 VA examiner found there was no ankylosis of the left ankle, the left-subtalar joint or the left-tarsal joint. Consequently, these 2 diagnostic codes, too, can provide no compensable rating. Diagnostic Code 5273 provides that malunion of the os calcis or astragalus with moderate deformity warrants a 10 percent rating, and malunion of the os calcis or astragalus with marked deformity warrants a 20 percent rating. Diagnostic Code 5274 provides a 20 percent rating for an astragalectomy. On examination, the September 2012 VA examiner specifically found the Veteran does not have or ever had malunion of the left calcaneus (os calcis) or left talus (astragalus) or a left talectomy (astragalectomy). The December 2012 rating decision which followed noted some improvement but added sustained improvement had not been definitively established. Although continuing the evaluation at 10 percent, the rating decision further noted that, as there was likelihood of improvement, the continued evaluation was not permanent and is subject to a future review examination. That examination took place in December 2013, in which the VA examiner stated the 2003 diagnosis as “left-ankle fracture, closed ---no residuals.” He noted the Veteran’s reports of experiencing stiffness with pain in the morning, which dissipates as time passes, and feeling a left-ankle “problem” when using stairs, but “not quite pain.” Findings on examination showed range of motion measurements for left-ankle plantar flexion at 45 degrees (45 degrees, normal) and left-ankle plantar dorsiflexion at 20 degrees (20 degrees, normal). There was no evidence of painful motion. The December 2013 VA examiner made no findings of pain, weakness, fatigability, or incoordination significantly limiting functional ability with repeated use over a period of time. The Veteran did not report flare-ups impacting left-ankle function. The December 2013 VA examiner added at the end of the examination report there was “[n]o clinical indication for Xrays” and “[a]nkles bilaterally equal to inspection, palpation, ROM [range of motion].” Once again, the above range of motion findings do not reflect moderate or marked limitation of left-ankle motion under Diagnostic Code 5271, but in fact show further improvement, as dorsiflexion, as well as plantar flexion, at this time were now normal. Looking to other findings on examination as they relate to the related or analogous diagnostic codes, the December 2013 VA examiner made no finding of impairments of the tibia and fibula affecting the left ankle (Diagnostic Code (DC) 5262), he found there was no ankylosis of the left ankle, the left-subtalar joint or the left-tarsal joint (DCs 5270, 5272) and he found there was no past or current malunion of the left calcaneus (os calcis) or left talus (astragalus) or a left talectomy (astragalectomy). (DCs 5273, 5274). An April 2014 rating decision proposed to decrease the evaluation to a noncompensable disability rating and the July 2014 rating decision effected the decrease, starting from October 1, 2014. The effective date was chosen as the first day of the month following the 60-day period after notification to the Veteran of the final rating decision which effectuates the reduction. See 38 C.F.R. § 3.105 (e). As the Veteran was notified of the reduction by a July 29, 2014 letter, October 1, 2014 is the proper effective date for the reduction, as the first day of month beginning after 60-days’ notice of the reduction. In August 2015, the Veteran underwent a VA examination for ankle conditions. Left-ankle dorsiflexion range of motion was 0 to 10 degrees, with pain noted, and left-ankle plantar flexion was 0 to 20 degrees. Although pain was noted on the examination, it did not affect function. The August 2015 VA examiner found pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or with repeated use over a period of time. The Veteran did not report flare-ups during the examination. Based on this examination, the August 2015 rating decision following several days later restored the evaluation to 10 percent, effective August 4, 2015, the date of the examination. On the summary of the record so far, the Board finds the September 2012 VA and the December 2013 examination, on which the reduction is based, are at least as full and complete as the January 2007 examination on which the original higher evaluation at 10 percent was based. See 38 C.F.R. § 3.44 (a). Additionally, the Board finds at no time during the appeal period between October 1, 2014 and August 4, 2015 did the weight of the evidence indicate moderate or marked limitation of left-ankle motion to support the restoration of the 10 percent evaluation under Diagnostic Code 5271 or warrant any compensable evaluations available under Diagnostic Codes 5262, 5270, 5272, 5273, and 5274, as left-ankle disorder did not exhibit left-knee tibial or fibular impairment affecting the left ankle, left-ankle ankylosis, ankylosis of the left-subastragalar or left-tarsal joint, or malunion of the left-os calcis talus (astragalus) or a left-talectomy (astragalectomy). Additionally, as the Veteran’s reports in the above examinations of functional loss due to left-ankle symptoms, as well as changes affecting normal working movements, were noted, included in the examination findings and considered in the assignment of the Veteran’s current disability evaluation, they have not presented a basis for a higher evaluation beyond the 10 percent rating for the effects of limitation of motion, due to the Veteran’s reported pain on movement. See 38 C.F.R. §§ 4.40, 4.45, 4.59; See DeLuca v. Brown, 8 Vet. App. at 204-07; Mitchell v. Shinseki, 25 Vet. App. at 37; Burton v. Shinseki, 25 Vet. App. at 5. However, the Board must also determine whether the evidence establishes with reasonable certainty the improvement would have been maintained under the ordinary conditions of life in the period of reduction. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, supra. Returning to the September 2012 VA examination, its findings show normal left-ankle plantar flexion motion, no evidence of painful motion and no discernible signs under x-ray of a disorder. Based on the Veteran’s reports, the September 2012 VA examiner found no impact of the disorder on the Veteran ’s ability to work. Additionally, the Veteran was riding his motorcycle that day. The foregoing suggests that, whatever improvement was shown, the Veteran was able at the time of the examination to engage fully in work and leisure activities, without any reports of hindrance due to his left-ankle disorder. In the December 2013 examination, the Veteran reported stiffness with pain in the morning, which dissipates as time passes and feeling a left-ankle “problem” when using stairs, but “not quite pain.” The Veteran’s own statement appears to be that his usual, daily symptoms begin with left-ankle stiffness, it goes away and, on use of the stairs, there is a sensation that does not rise to level of pain, implying that in the ordinary conditions of life , he can continue in activities of daily living in a better state than when he rose in the morning, in fact with an ever-lessening impact as he progresses through the day. Moreover, in both the September 2012 and December 2013 examinations, conducted approximately a year and 3 months apart, the Veteran did not report pain and the examiners did not detect it on examination. Significantly, by the time of the August 2015 VA examination, the findings of which were the basis of the restoration of the 10 percent rating, the Veteran was now including in his reports he was experiencing pain. In short, improvement in the form of near-normal motion and no pain, as found in the September 2012 VA examination, and fully normal motion and, again, no pain, as found in the December 2013 VA examination, was sustainable until reduced motion in both left-plantar flexion and left dorsiflexion, as well as pain, was found in the August 2015 VA examination. That the medical evidence of record in the period from October 1, 2014 through August 5, 2015 shows that improvement in fact was maintained under the ordinary conditions of life is borne out by the Veteran’s own reports of no left-ankle impact on work, dissipating stiffness after rising in the morning, no actual sensation of pain when using stairs, and, it appears, sufficient control of motion and absence of pain to mount, ride and dismount a motorcycle, by which he arrived for the September 2012 VA examination. As stated earlier, post-reduction medical evidence may be considered to determine whether actual improvement was demonstrated. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Therefore, looking to the Veteran’s testimony in the January 2019 Board hearing, he states he is not able to use the left ankle as much as he does the right ankle, “and with the fact that I’m putting more stress on the right, I’m just wondering how long that’s going to hold up.” This statement does not speak to an actual impact on ordinary conditions of life, but rather to prospective, and rather speculative, deleterious effects of favoring his right ankle. Significantly, when asked if his ankle causes missed time from work, the Veteran responded no. Turning to the April 2015 Decision Review Officer (DRO) hearing at the AOJ and again to the January 2019 Board hearing, the Veteran argues that the reduction to a noncompensable rating was unwarranted and the evidence shows that there had been no improvement in the period from October 1, 2014 through August 4, 2015. Specifically, the Veteran alternatively asserted at the DRO hearing that in fact there was no ankle examination in December 2013 or that it was inadequate, as no range of motion measurements were taken, no strength testing was performed, the December 2013 VA examiner did not make proper findings regarding flare-ups, and he apparently overlooked the September 2012 x-rays in the record. However, the Board notes that the December 2013 VA examination report contains entries for all range of motion maneuvers. As it is, the only differences between the December 2013 findings and the September 2012 findings in the left-ankle range of motion measurements, is dorsiflexion in September 2012 was at 10 degrees and in December 2013 it was at a full and normal 20 degrees, thereby confirming the improvement which only had been indicated in the September 2012 VA examination. Moreover, as stated above, the September 2012 x-rays, whether or not noted by the December 2013 VA examiner, show no evident left-ankle disorder. Additionally, the Board must further take note that the testimony of both the Veteran and his representative at the April 2015 DRO hearing, when questioned by the Decision Review Officer, specifically confirms that the examination to which they referred was the December 2013 VA examination. The Veteran could not remember the VA examiner’s name, but identified her as a female. At the time, the Veteran thought he was to undergo an ankle examination by a “male examiner,” but a female VA examiner had entered the examination room to conduct instead a skin disorder examination. However, the Board’s review of the record shows no other VA examination conducted on the same day as the December 2013 ankle examination. Yet, the previous year’s series of four VA examinations, all conducted on the same day in September 2012 by a female VA examiner, in fact included a skin disorder examination, as well as the left-ankle examination. The Board must conclude that it is at least a reasonable possibility that both the Veteran and his representative have reversed times and circumstances of some of the four September 2012 VA examinations with that of the single December 2013 VA examination, conducted by a male VA examiner. The Veteran testified at the January 2019 Board hearing to a lack of improvement of the left ankle in the period from October 1, 2014 through August 4, 2015, specifically in favoring his right ankle more, observing greater wear on his work boots and noting the differences in size between the ankles. Although it is not the Veteran’s burden of proof to demonstrate he is entitled to retain the original evaluation, in considering that the details of several VA examinations may have been misremembered and without more reliable evidence in the record, the Board finds the weight of the evidence of record shows the December 2013 VA examination appears not otherwise than adequate and the findings set down in its report sufficient for rating purposes. The Veteran’s February 2021 Appellate Brief concedes that a disability may change during the pendency of an appeal, but “we do not believe the disability changes on the same day as [the] VA examination,” implying that the findings of that examination are inconsistent with the record of ongoing symptoms and the reports of the Veteran. Although the Brief does not specify the date of the VA examination to which it refers, as already stated above, the testimony of both the Veteran and his representative at the April 2015 DRO hearing confirms that the examination which they assert was inadequate was the December 2013 VA examination. Additionally, although the Veteran states in the Brief, “I never did understand why it got de-rated in the first place. It never got any better,” the Board again notes that during the December 2013 VA examination, the Veteran reported morning stiffness, which then dissipates and, when using stairs, it was not actually painful. Moreover, on examination, the Veteran further reported he does not use an assistive device. Furthermore, the December 2013 VA examiner remarked that there were no clinical indications of the disorder in x-rays and on examination and the Veteran’s ankles were “bilaterally equal to inspection, palpation, ROM [range of motion].” These reports and findings are not of a sort which speak only to a temporary disposition of that day’s examination of the left ankle. They give indication of ongoing aspects of the disorder. Once again, the Veteran’s own statement of morning stiffness that then goes away indicates his daily observations, not just on the morning of the examination. He reported no assistive devices are necessary, which, once again, is not just that day’s situation, but is a general statement encompassing all days, until the Veteran will report otherwise. X-rays, by definition, are not a “snapshot,” as might be mistakenly thought, but, as a diagnostic tool, are undeniable evidence of the nature of the internal pathology of the claimed disorder. In short, they do not represent the state of the disorder for that day’s examination, but present the history and results of trauma, the radiological detection of which will not appear better or worse on the following day or days. In carefully considering the Veteran’s January 2019 Board hearing testimony, as well as that of the April 2015 DRO hearing, and the lay statements of the Veteran and his wife between January 2012 and September 2015, giving details of the Veteran’s current left-ankle symptoms, the Board recognizes that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran and his wife are competent to provide statements of symptoms which are observable to their senses and there is no reason to doubt their credibility. However, their lay evidence must in turn be weighed against other evidence, as all relevant evidence of varying kinds must be considered. Although the Veteran testified that he believes the December 2013 VA examination was inadequate, the Board has reviewed the record and, as stated above, has noted the strong possibility of confusing the September 2012 VA examination for skin disorders with the December 2013 VA examination for ankle conditions. Moreover it appears appropriate testing results were reported from the examination. The Board has also noted carefully the Veteran’s testimony and lay statements asserting that his left-ankle symptomatology has remained the same during the period of reduction. However, although the September 2012 VA examination only indicated improvement, the December 2013 VA examination produced not only the same findings, but a left-ankle dorsiflexion finding showing further improvement. Its further findings on examination support and are consistent with the more generalized reports and observations of the state or condition of the left-ankle, discussed above, as they show normal left-ankle range of motion measurements, no flare-ups, no objective evidence painful motion, no limitation of motion, no left-ankle functional impairment or loss, no soft-tissue pain, no diminished muscle strength, and no instability. The Board therefore assigns more probative value to the September 2012 and December 2013 examination reports, as they were conducted by medical professionals after in-person examination and testing of the Veteran’s left ankle, the examiners thoroughly reviewed the Veteran’s medical history and their orthopedic findings, for the reasons stated above, exhibit sound clinical conclusions. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). The above reports by the Veteran and the findings on examination demonstrate with that sustained improvement would be maintained under the ordinary conditions of life and work in the period of reduction of October 1, 2014 through August 4, 2015. For the foregoing reasons and based on the medical evidence of record, the Board finds reduction from a 10 percent rating to a noncompensable rating from October 1, 2014 through August 4, 2015 was proper. Consequently, restoration of the 10 percent rating for the period is not warranted. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to an initial compensable disability evaluation for bilateral-foot skin disorder. The parties to the August 2020 JMR agree that the Board did not provide an adequate statement of reasons or bases regarding whether the Veteran’s bilateral-foot skin disorder can be rated on an extraschedular basis, based on the Veteran’s January 2019 Board hearing testimony of hardened and splitting skin. The Board therefore must account for the foregoing evidence and provide an adequate statement of reasons or bases for whether an extraschedular referral is required based on the evidence of record. The Veteran’s last VA examination was conducted in August 2015, approximately 5 years and 7 months ago. When the evidence, such as the Veteran’s testimony and statements above, suggests that a disability has worsened since a veteran’s last VA examination and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). For these reasons, there is insufficient competent medical evidence for VA to make a decision on these claims. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). Remand is therefore necessary for a VA examination with current findings regarding the nature, extent and severity of the Veteran’s disorder, from which it can then be determined whether the schedular criteria under which the disorder has been evaluated captures the Veteran’s disability picture and would warrant referral to the Director of Compensation Service for extraschedular consideration. 2. Entitlement to service connection for headaches, to include migraine headaches. The parties to the JMR agree that the Board erred by not providing an adequate statement of reasons or bases as to why it found that the September 2012 VA examination was adequate to satisfy the duty to assist, as the Board had observed in its May 2019 decision, “[a]though the September 2012 VA examiner emphasized in the rationale to her opinion that the record provides no evidence of a chronic headache disorder, the Board again notes that the in-service May 2001 treatment provider assessed the Veteran with migraine, resolved[,]” thereby indicating the Board recognized that the September 2012 VA examiner’s opinion was based on not fully correct evidence, yet the Board did not discuss if the September 2012 VA examination was adequate. The parties agree the Board must discuss whether the September 2012 VA examination is adequate and whether a new VA examination is necessary to ensure that the duty to assist is satisfied. Additionally, the parties agree that, on remand, the Board should address the Veteran’s April 2015 correspondence, in which he stated “[o]ne of the doctors suggested that [headaches] may have been caused by the Anthrax vaccine we received” and also January 28, 2019 BVA hearing at which the Veteran testified he has had migraines since he left service and “I was a hazardous waste handler and a disposal NCO [non-commissioned officer] the entire time I was at Cherry Point [, North Carolina].... I know that the [headaches] started around the time when I was in Cherry Point and it persists to this day.” For these reasons, the Board remands the matter for a new VA examination and opinions addressing the above assertions of continuity of symptomatology. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for bilateral-foot skin disorder and headaches at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for an examination conducted by VA examiners with appropriate specialties for producing findings for skin disorders, to include dermatitis and eczema afflicting the foot, and for headaches, to include migraine headaches. The complete electronic claims file must be made available to the examiners in conjunction with the examination. The examiners should detail all findings. The examiner for skin disorders is requested to provide findings and diagnoses as to the nature, extent and current severity of the Veteran’s service-connected bilateral-foot skin disorder. All indicated tests should be preformed and all findings reported in detail. This should include findings of any skin breakdown, bleeding, blistering of other such findings. If not found, this should be set out. Any opinion or commentary rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment in the rationale on any relevant opinions found in the record. The examiner is further requested to acknowledge, address, consider, and discuss the Veteran’s January 2019 Board hearing testimony, his April 2015 Decision Review Officer (DRO) testimony, his lay statements found in his February 2013 and April 2015 correspondence, his lay statement accompanying his September 2015 Veterans Appeals Form 9, as well as the Veteran’s reports to treatment providers, as they appear throughout the record, and all lay evidence of other persons, to include his wife, as it pertains to bilateral foot-skin disorder. The Board urges the examiner to note that findings or opinions rendered without addressing and discussing the lay evidence of the Veteran and others will be deemed insufficient for purposes of VA adjudication. The examiner for headaches is first requested to direct his or her attention to the Veteran’s April 2015 correspondence, in which he states “[o]ne of the doctors suggested that [headaches] may have been caused by the Anthrax vaccine we received” and to the Veteran’s January 2019 Board hearing testimony, in which he states he has had migraines since he left service and “I was a hazardous waste handler and a disposal NCO [non-commissioned officer] the entire time I was at Cherry Point[, North Carolina]... I know that the [headaches] started around the time when I was in Cherry Point and it persists to this day.” The examiner is requested to render opinions addressing the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that headaches, to include migraine headaches, were incurred during active service or are caused by an event, injury or illness during active service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that headaches, to include migraine headaches, manifested in a continuity of symptomatology from the date of separation from active service through September 24, 2012, the date of the Veteran’s VA examination for headaches. (c) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that headaches, to include migraine headaches, are caused by or etiologically related to the routine administration of an anthrax vaccination during the Veteran’s active service. (d) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that headaches, to include migraine headaches, are caused by or etiologically related to the Veteran’s handling of hazardous waste and the disposal of hazardous waste while posted at the relevant installation in Cherry Point, North Carolina. Each opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment in the rationale on any relevant opinions found in the record. The examiner is further requested to acknowledge, address, consider, and discuss the Veteran’s January 2019 Board hearing testimony, his April 2015 Decision Review Officer (DRO) testimony, his lay statements found in his February 2013 and April 2015 correspondence, his lay statement accompanying his September 2015 Veterans Appeals Form 9, as well as the Veteran’s reports to treatment providers, as they appear throughout the record, and all lay evidence of other persons, to include his wife, as it pertains to headaches. The Board urges the examiner to note that findings or opinions rendered without addressing and discussing the lay evidence of the Veteran and others will be deemed insufficient for purposes of VA adjudication 3. After completing the above development and any other indicated development readjudicate the claims. In readjudicating the rating for the skin disorder, consideration should be given to whether referral for extraschedular consideration is in order. All pertinent considerations should be set out. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, Associate 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.