Citation Nr: A25035506 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240306-422742 DATE: April 17, 2025 ORDER Entitlement to a disability rating in excess of 10 percent disabling for service-connected lateral collateral ligament sprain left is denied. Entitlement to a separate 20 percent rating by analogy for left ankle instability under Diagnostic Code (DC) 5257 is granted. Entitlement to service connection for a traumatic brain injury (TBI) is granted. Entitlement to service connection for general anxiety disorder (GAD) as due to now service-connected traumatic brain injury (TBI) is granted. FINDINGS OF FACT 1. The Veteran's service-connected lateral collateral ligament sprain left is manifested by no more than moderate limited motion of the ankle. 2. The evidence of record persuasively weighs in favor of finding the Veteran had instability of the left ankle requiring use of a brace, without any ligamentous tears. 3. Resolving reasonable doubt in the Veteran's favor, the Board finds he suffered a TBI during active-duty service. 4. Resolving reasonable doubt in the Veteran's favor, the Board finds his currently diagnosed GAD is proximately due to his now service-connected TBI disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected lateral collateral ligament sprain left have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. The criteria for a separate 20 percent disability rating for left ankle instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, DC 5257. 3. The criteria for service connection for TBI are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for GAD as secondary to now service-connected TBI are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from August 1996 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) from a February 2024 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the March 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the February 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of entitlement to service connection for TBI, and an acquired psychiatric disorder, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Increased and Separate Ratings 1. Entitlement to a disability rating in excess of 10 percent disabling for service-connected lateral collateral ligament sprain left 2. Entitlement to a separate 20 percent rating by analogy for left ankle instability under Diagnostic Code (DC) 5257 The Veteran's service-connected lateral collateral ligament sprain left is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. Id. He filed a claim for an increased rating in November 2023. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for the Veteran's disability as dorsiflexion measured 10 degrees at worst, and plantar flexion measured 30 degrees at worst. Thus, these measurements did not meet the criteria corresponding to a higher 20 percent rating. The Veteran's disability was examined by VA in December 2023, and per the report, the Veteran suffered abnormal range of motion with initial measurements, notably plantar flexion endpoint to 35 degrees, and dorsiflexion endpoint to 10 degrees; the Veteran exhibited pain with both. With passive range of motion, the Veteran had plantar flexion endpoint to 40 degrees, and dorsiflexion endpoint to 20 degrees; the Veteran exhibited pain with both. The Veteran exhibited pain with weight-bearing, nonweight-bearing, active motion, passive motion, causing functional loss whereby the Veteran has difficulty with inclines, going up and down stairs, prolonged walking and standing, and is not able to run. The VA examiner indicated that the Veteran has moderate sprain of the lateral malleolus. With observed repetitive use, the Veteran was able to perform testing with at least three repetitions, with plantar flexion endpoint to 30 degrees, and dorsiflexion endpoint to 10 degrees. The VA examiner indicated factors contributing to functional loss include pain, fatigability, weakness, lack of endurance, and incoordination. With repeated use over time, the Veteran was not immediately examined after, however, the VA examiner was able to indicate that factors of pain, fatigability, weakness, lack of endurance, incoordination contribute to functional loss with plantar flexion endpoint to 30 degrees, and dorsiflexion endpoint to 10 degrees. With flare-ups, the VA examiner noted that the Veteran suffers them daily, and that they are characterized by increased pain, stiffness, decreased range of motion, and tend to be severe. Estimated range of motion during a flare-up included plantar flexion endpoint to 30 degrees, and dorsiflexion endpoint to 10 degrees. Factors contributing to the Veteran's disability included swelling, disturbance of locomotion, less movement than normal, weakened movement, and instability of station. There were no signs or symptoms of muscle atrophy, ankylosis. The VA examiner did indicate that the Veteran does suffer asymmetric or excessive motion. The Veteran regularly uses an ankle brace as an assistive device. The Board finds the December 2023 VA examination report to be most probative as it included an in-person examination, lay testimony elicited from the Veteran, medical testing, and well-reasoned rationales in support of its findings or conclusions. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, swelling, weakness, and instability, however, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that would not result in symptoms more nearly approximating marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) Of import, the record does not reveal, nor does the Veteran that his disability is manifested by symptoms that meet the next highest rating criteria. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 10 percent for lateral collateral ligament sprain left. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Separate Rating for Left Ankle Instability... Relative to the Veteran's reports of his left ankle giving out, instability, and the evidence of a positive Talar Tilt Test, said symptoms and findings are not contemplated by the Veteran's currently assigned 10 percent rating under DC 5271. Additionally, there are no DCs that specifically contemplate instability of the ankle. Historically, prior to the February 2021 regulatory amendments, ankle instability was typically rated under DC 5262, for impairment of the tibia and fibula. Ratings were provided for nonunion, with loose motion, requiring a brace, and for malunion, based on marked, moderate, or slight ankle disability. Instability was often analogized to malunion. With the 2021 changes, DC 5262 continued a rating for nonunion; however, the code now directs that malunion be evaluated under DC 5270 or 5271 for limitation of motion of the ankle. Notably, the Veteran does not have nonunion of the two shin bones. Also, he is already in receipt of a rating under DC 5271 for his limitation of motion; therefore, to grant a second rating under that code to attempt to compensate for instability would result in impermissible pyramiding. Therefore, the Board looks to closely related injuries in the code to determine how to properly rate the Veteran's disability. See 38 C.F.R. § 4.20. The Veteran's disability is a lateral collateral ankle sprain. In this case, the DC most closely related to ankle instability appears to be DC 5257 for knee instability. DC 5257 provides for a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es) walker) or bracing for ambulation. A 30 percent rating is assigned for an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es) walker) and bracing for ambulation. The Veteran has a sprain and uses an ankle brace. While he does not report recurrent falls, nevertheless, the record does reveal findings of instability of station, and reports of weakness and his ankle giving out, as well as the use of an ankle brace. There are no treatment records in the file for the ankle, and he has not indicated that he gets any treatment for his ankle. Thus, it is unclear whether the brace was prescribed by a medial provider or if the Veteran sought it out on his own. However, his November 2023 statement speaks to mobility issues every day, and his compensation examination in February 2024 speaks to instability and weakness and includes objective evidence of the same. As such, the Board finds the evidence in relative balance as to whether a brace would be prescribed. Accordingly, the instability severity more nearly approximates the 20 percent criteria, but no higher, to the extent that the Veteran suffers persistent instability requiring the use of an ankle brace for his left ankle sprain. Notably, there is no evidence of any type of tear in the Veteran's ankle ligaments. Thus, a higher rating is not warranted. In sum, the assignment of a separate 20 percent rating for left ankle instability is warranted. 38 C.F.R. §§ 4.20, 4.71a, DC 5257. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). 3. Entitlement to service connection for a traumatic brain injury (TBI) 4. Entitlement to service connection for general anxiety disorder (GAD) The Veteran claims service connection for a TBI, as well as for an acquired psychiatric disorder as having been proximately caused by a TBI during service. Initially, the Board notes the RO's favorable findings, specifically that the Veteran has current diagnoses of TBI and GAD, and that the claimed for GAD condition is secondary to the TBI. Thus, the Board's inquiry rests with whether the Veteran's TBI incurred or directly relates to service. Importantly, the January 2024 VA examiner did not find that the Veteran suffers from posttraumatic stress disorder (rather GAD), nor does the evidence of record support such a finding, and therefore that claim must be denied as a matter of law as the Veteran is not competent to provide a diagnosis in this case for a medically complex condition. See Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007); Clemons v. Shinseki, 23 Vet. App. 1 (2009). As to the Veteran's claimed for TBI condition, the January 2024 VA examiner indicated that the Veteran suffered a traumatic event during service in which he lost consciousness upon slipping while stationed aboard a submarine during active-duty service. See Separation Examination (noting a head contusion and laceration on scalp in 1997). This same event was medically linked to the Veteran's currently diagnosed GAD condition. Id. Although the Veteran's service treatment records reveal a pre-existing head injury, the VA examiner admitted that very little could be discerned regarding the event as the evidence is merely the aforesaid notation in the STRs, and where the Veteran relayed suffering no residuals or ill effects. Thus, the Board ultimately finds that there was no preexisting disability in this case. The Veteran suffered a TBI in service and continues to carry a diagnosis of TBI. Overall, the Board finds the evidence of record is at least in equipoise as to whether the Veteran suffered a TBI during service of which proximately caused his claimed for GAD condition. The Board finds that application of the benefit-of-the-doubt doctrine is appropriate warranting a grant for service connection for TBI, and for GAD as proximately caused by the TBI, and the claims are granted to this extent. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, 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.