Citation Nr: 1761161
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 10-07 017 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico

THE ISSUES

1. Entitlement to service connection for a skin disorder.

2. Entitlement to service connection for an acquired psychiatric disorder.

3. Entitlement to service connection for a sinus disorder.

4. Entitlement to service connection for a lung disorder.

5. Entitlement to service connection for a back disorder.

6. Entitlement to a rating in excess of 10 percent for right ankle fracture residuals, to include arthritis.

REPRESENTATION

Veteran represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

M. Thompson, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from January 1968 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

The Veteran also perfected an appeal with regard to a claim of service connection for bilateral hearing loss. In July 2017, the RO granted service connection for bilateral hearing loss, and thereby resolved the appeal as to that issue.

This matter was remanded by the Board in December 2013 and June 2016 for further development and has since been returned to the Board for appellate review.

The issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to service connection for a back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. The Veteran’s skin disorder was not manifested in service or in the first post-service year, and the preponderance of the evidence is against a finding that the Veteran’s skin disorder is otherwise related to his service or was caused or aggravated by his exposure to herbicides.

2. The Veteran’s sinus disorders were not manifested in service or in the first post-service year, and the preponderance of the evidence is against a finding that the Veteran’s sinus disorders are otherwise related to his service or were caused or aggravated by his exposure to herbicides.

3. The Veteran’s lung disorder was not manifested in service or in the first post-service year, and the preponderance of the evidence is against a finding that the Veteran’s lung disorder is otherwise related to his service or was caused or aggravated by his exposure to herbicides.

4. The Veteran’s right ankle fracture residuals, to include arthritis, are characterized by marked limitation of motion with moderate to severe functional loss, but without ankylosis.

CONCLUSIONS OF LAW

1. The criteria for service connection for a skin disorder disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(b), 3.307, 3.309 (2017).

2. The criteria for service connection for sinus disorders are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(b), 3.307, 3.309 (2017).

3. The criteria for service connection for a lung disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(b), 3.307, 3.309 (2017).

4. The criteria for a 20 percent evaluation for service-connected right ankle disorder are met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Service Connection

As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran’s claim file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service – the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017).

In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.

If a veteran was exposed to an herbicide agent during active military, naval, or air service, the list of diseases provided in 38 C.F.R. § 3.309(e) shall be service-connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied.

A presumption of service connection based on exposure to herbicides, to include Agent Orange, used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which VA has not specifically determined a presumption of service connection is warranted. See 72 Fed. Reg. 32,395 (June 12, 2007).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990).

Skin Disorder

The Veteran’s STRs are silent regarding any skin disorder complaints, treatment, or diagnoses. In December 1996 VA treatment records, the Veteran reported a skin rash with itching. Throughout the remaining VA treatment records, the Veteran’s skin was found to be normal with no lesions and negative for rashes or skin discoloration.

A September 2014 VA examination was conducted. The Veteran reported that he has had a skin condition on his back for the prior three years. The Veteran stated that the skin condition was always present and non-pruritic and that he has not used any medication for this condition. The examiner diagnosed the Veteran with seborrheic keratosis and opined that the Veteran’s skin disorder was less likely than not incurred in or caused by service. The examiner reasoned that the Veteran’s seborrheic keratosis is a benign skin tumor of unknown etiology, but hereditary facts and aging have been implicated. The examiner concluded that there is no relation to military service.

A May 2017 VA examination was conducted. The Veteran reported that for the last ten years he has been noticing dark growths on his back and face. The Veteran stated that he has never visited a specialist or used any medication. The Veteran denied any itching or pain. The examiner opined that the Veteran’s seborrheic keratosis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, not related to service, and not related to herbicide exposure. The examiner reasoned that the STRs do not show any evidence of signs, symptoms, diagnosis, treatments, or a chronic disability pattern suggestive of seborrheic keratosis during active duty, or within a year after separation from service. The examiner further stated that medical literature does not support a direct etiologic relation between past exposures to herbicides and further development of seborrheic keratosis. The examiner concluded that seborrheic keratosis is a benign growth in which hereditary factors and aging have been implicated.

The Board finds that service connection on a direct basis is not warranted. Although there is a current skin disorder, there is no in-service event, injury, or disease, to include any complaints regarding rashes, itching, or lesions on the skin. Additionally, the STRs are silent regarding the skin disorder.

Furthermore, the Veteran has asserted that his skin disorder was caused by service. However, the record does not demonstrate that the Veteran experienced any symptoms during service or after discharge. The first documentation of symptoms of a skin disorder occurred in 1996, 26 years after discharge from service. This weighs against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder).

Finally, the VA medical examination and opinion from May 2017 stated that the Veteran’s skin disorder was not related to service, to include the Veteran’s exposure to Agent Orange. The Board accords this opinion significant probative value as it is based upon a review of the relevant records, including the Veteran’s STRs, and provides a well-reasoned supporting explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in the probative value of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion).

Accordingly, there is no in-service event, the evidence does not support symptoms during or directly after service, and the only etiological opinion of record is that the disability is unrelated to active service. Thus, direct service connection is not warranted on this basis. See 38 C.F.R. § 3.303.

Next, the Board finds that service connection on presumptive basis is not warranted. Again, although there is a current skin disorder, seborrheic keratosis-and any characteristic manifestations of seborrheic keratosis-was not diagnosed within one year of service discharge. Rather, it was not diagnosed until 2014, almost 44 years after discharge. See 38 C.F.R. § 3.307(a)(3). Further, as there were no seborrheic keratosis symptoms or complaints during service, no chronic disability was established during active service. See 38 C.F.R. §§ 3.303(b), 3.309; Walker, 708 F. 3d 1331. Thus presumptive service connection is also not warranted.

The Veteran is competent to convey matters that can be observed or described. Here however, the Veteran does not claim any specific symptoms related to seborrheic keratosis aside from diagnosis by a medical provider. The Veteran’s assertion that his seborrheic keratosis was caused by service, to include service in the Republic of Vietnam and exposure to herbicide agents, is not probative because he is a layperson and lacks the training to opine regarding medical etiology. The question of the etiology of a disorder is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Court). Also, seborrheic keratosis is a disease of the integumentary system, and the record does not show that the Veteran has training or education in this medical field. Therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation.

In sum, the competent and probative evidence of record shows that the Veteran is not entitled to service connection for a skin disorder. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). As the evidence preponderates against the claim, there is no reasonable doubt to be resolved, and entitlement to service connection for a skin disorder is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Sinus Disorder

The Veteran seeks entitlement to service connection for a sinus disorder, which he asserts is caused by his military service, including due to exposure to Agent Orange.

The January 1968 induction examination noted that the Veteran’s nose, sinuses, and mouth and throat were normal. The STRs noted that in February 1968 and March 1968 the Veteran reported a sore throat and a cough.On the November 1969 separation examination the Veteran noted that he had sinusitis. However, the Veteran noted that he did not have chronic cough. The medical provider noted that his nose, sinuses, mouth, and throat were normal. In the March 1970 STRs medical examination for disability evaluation, the medical provider noted that the Veteran’s nose, sinuses, mouth, and throat were normal.

The VA treatment records and private treatment records are silent for complaints, symptoms, or treatments for a sinus disorder from discharge to 2005, when the VA examiner first noted a diagnosis of sinusitis and allergic rhinitis.

A September 2014 VA examination was conducted. The Veteran reported that he had experienced sinusitis since active service from 1968 to 1970. The Veteran stated that he occasionally used medication. The Veteran denied daily nasal or sinus congestion, pain or tenderness on frontal, ethmoidal, maxillary or sphenoidal sinuses (right or left), headaches, nasal purulent secretions, nasal crusting, and antibiotics in the last year or incapacitating episodes in the last year.

The September 2014 examiner opined that the Veteran’s sinusitis was less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner found, upon examination, that the Veteran had no evidence of tenderness to percussion on frontal, ethmoidal, maxillary or sphenoidal sinuses (right or left), no evidence of nasal congestion, no evidence or nasal purulent secretions, and no evidence of no nasal crusting.

A May 2017 VA examination was conducted. The examiner noted that the Veteran was diagnosed with chronic sinusitis and allergic rhinitis in 2005. The Veteran reported that while serving in Vietnam he had an episode of eye swelling with nose congestion, for which he was treated. The Veteran stated that since this treatment, he continued to suffer from recurrent nasal congestion and allergies. He stated that he has been prescribed medications for nasal symptoms for the past fifteen to twenty years. The Veteran reported that he currently has daily nose congestion, nasal allergies, and difficulty breathing through the nose, as well as episodes of more severe congestion with associated pain and tenderness on frontal and maxillary area.

The May 2017 examiner opined that the Veteran’s sinus disorders of allergic rhinitis and chronic sinusitis were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, not related to service, and not related to herbicide exposure. The examiner reasoned that the STRs show evidence of only one medical evaluation in February 1968 due to a sore throat and cough for a week. The examiner found that the Veteran’s complaints were only an acute, isolated, transient episode for which he was treated symptomatically, and which resolved without evidence of complications, sequelae or residuals. Further, the examiner noted that the STRs did not show any evidence of signs, symptoms, diagnosis, treatments, or chronic disability pattern suggestive of chronic allergic rhinitis or chronic sinusitis during active duty, or within a year after separation from service. The examiner found that the medical literature did not support a direct etiologic relation between past exposures to herbicides and further development of rhinitis or sinusitis.

Upon review of the record, the Board finds that service connection for a sinus disorder on a direct basis is not warranted. Although the Veteran has been diagnosed with current sinus disorders, there is no in-service event, injury, or disease, to include any complaints regarding congestion, pain and tenderness, or allergies. Additionally, the STRs are silent regarding the any continuous or chronic symptoms of sinusitis or allergic rhinitis.

Furthermore, the Veteran has asserted that his sinus disorders were caused by service. However, the record does not demonstrate that the Veteran experienced any symptoms during service or after discharge. The first documentation of symptoms of a sinus disorder occurred in 2005, when the Veteran was first diagnosed, 35 years after discharge from service. This weighs against the claim. See Mense, 1 Vet. App. 354.

Finally, the VA medical examination and opinion from May 2017 stated that the Veteran’s sinus disorders were not related to service, to include the Veteran’s exposure to Agent Orange. The Board accords this opinion significant probative value as it is based upon a review of the relevant records, including the Veteran’s STRs, and provides a well-reasoned supporting explanation. Nieves-Rodriguez, 22 Vet. App. 295; Prejean, 13 Vet. App. 444. Accordingly, there is no in-service event, the evidence does not support symptoms during or directly after service, and the only etiological opinion of record is that the disability is unrelated to active service. Direct service connection is not warranted on this basis. See 38 C.F.R. § 3.303.

Next, the Board finds that service connection on presumptive basis is not warranted. Again, although there are current sinus disorders, sinusitis and allergic rhinitis-and any characteristic manifestations of the sinus disorders-were not diagnosed within one year of service discharge. Rather they were not diagnosed until 2005, almost 35years after discharge. See 3.307(a)(3). Further, as there were no sinus disorder symptoms or complaints during service or documented at discharge, no chronic disability was established during active service. See 38 C.F.R. §§ 3.303(b), 3.309; Walker, 708 F. 3d 1331. Thus presumptive service connection is also not warranted.

The Veteran’s assertion that his sinus disorders were caused by service, to include service in the Republic of Vietnam and by exposure to herbicide agents, is not probative because he is a layperson and lacks the training to opine regarding medical etiology. See Jandreau, 492 F. 3d 1372. Also, sinusitis and allergic rhinitis are diseases of the respiratory system, and the record does not show that the Veteran has training or education in this medical field. Therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr, 21 Vet. App. 303; Layno, 6 Vet. App. 465. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation.

In sum, the competent and probative evidence of record shows that the Veteran is not entitled to service connection for sinus disorders. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. As the evidence preponderates against the claim, there is no reasonable doubt to be resolved. Entitlement to service connection for sinus disorders is denied. Gilbert, 1 Vet. App. 49, 53.

Lung Disorder

The Veteran is also seeking service connectio for a lung disorder, which he contends is related to service, to include exposure to Agent Orange.

In the November 1969 separation examination, the Veteran noted that he had no history of asthma. Further, the medical provider noted that the Veteran’s lungs were normal. In the March 1970 STR medical examination for disability, the medical provider noted that the Veteran had a clear chest. No respiratory problems were identified.

In November 2000 VA treatment records there is a note that the Veteran has a history of asthma. The medical provider noted that the Veteran had a history of systemic illness except fatigue after a pneumonia episode five years prior. Upon examination of the lungs, the medical provider found bilateral breath sounds clear to auscultation.

A September 2014 VA examination was conducted. The Veteran reported that he experienced occasional coughing and chest tightness one per week and was responsive to an inhaled bronchodilator prescribed due to asthma. The examiner noted that the Veteran was diagnosed with asthma in 2014. The examiner opined that the Veteran’s bronchial asthma was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.

A May 2017 VA examination was conducted. The Veteran reported that he started suffering from asthma in service. The Veteran stated that he sought and continued treatment from a private physician for respiratory systems for about fifteen to twenty years. The Veteran reported symptoms of fatigue, shortness of breath and dyspnea, and dry cough. The examiner noted that he Veteran was diagnosed with asthma in 2000. The examiner opined that the Veteran’s asthma was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, not related to service, and not related to herbicide exposure. The examiner reasoned that that the Veteran’s STRs did not show any evidence of signs, symptoms, diagnosis, treatments, or a chronic disability pattern suggestive of asthma during active duty, nor within a year after separation from service. The examiner reviewed the medical literature and found that the literature did not support a direct etiologic relation between past exposures to herbicides and further development of asthma.

Upon review of the record, the Board finds that service connection on a direct basis is not warranted. Although there is a current lung disorder, there is no in-service event, injury, or disease, to include any complaints regarding shortness of breath. Additionally, the STRs are silent regarding the any continuous or chronic symptoms of asthma.

Furthermore, the Veteran has asserted that his lung disorder was caused by service. However, the record does not demonstrate that the Veteran experienced any symptoms during service or after discharge. The first documentation of symptoms of a lung disorder occurred in 2000, when the Veteran was treated for respiratory symptoms, 30 years after discharge from service. This weighs against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991).

Finally, the VA medical examination and opinion from May 2017 stated that the Veteran’s lung disorder was not related to service, to include exposure to Agent Orange. The Board accords this opinion significant probative value as it is based upon a review of the relevant records, including the Veteran’s STRs, and provided a supporting explanation. Nieves-Rodriguez, 22 Vet. App. 295; Prejean, 13 Vet. App. 444. Accordingly, there is no in-service event, the evidence does not support symptoms during or directly after service, and the only etiological opinion of record is that the disability is unrelated to active service. Direct service connection is not warranted on this basis. See 38 C.F.R. § 3.303.

Next, the Board finds that service connection on presumptive basis is not warranted. Again, although there is a current lung disorder, asthma, and any characteristic manifestations of asthma, was not diagnosed within one year of service discharge. Rather it was not diagnosed until at best 2000, almost 30 years after discharge. See 38 C.F.R. § 3.307(a)(3). Further, as there were no lung disorder symptoms or complaints during service, or documented at discharge, no chronic disability was established during active service. See 3.303(b), 3.309 (2017); Walker, 708 F. 3d 1331. Thus presumptive service connection is also not warranted.

The Veteran’s assertion that his lung disorder was caused by service, to include service in the Republic of Vietnam and by exposure to herbicide agents, is not probative because he is a layperson and lacks the training to opine regarding medical etiology. See Jandreau, 492 F. 3d 1372. Also, asthma is a disorder of the respiratory system, and the record does not show that the Veteran has training or education in this medical field. Therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr, 21 Vet. App. 303; Layno, 6 Vet. App. 465. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation.

In sum, the competent and probative evidence of record shows that the Veteran is not entitled to service connection for a lung disorder. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017). As the evidence preponderates against the claim, there is no reasonable doubt to be resolved, and entitlement to service connection for a lung disorder is denied. Gilbert, 1 Vet. App. 49.

III. Increased Rating for Right Ankle Disorder

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The 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 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2017).

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 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The examination on which ratings are based must adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.

Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2017). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017).

Here, the Veteran’s right ankle disorder is rated under 38 C.F.R. § 4.71a Diagnostic Code (DC) 5271 for limited motion of the ankle. The normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II (2017). Under DC 5271, a 10 percent evaluation is assigned where the limitation of motion is “moderate.” A 20 percent evaluation is assigned where the limitation of motion is “marked.” Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The words slight, moderate, moderately severe, marked, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence in reaching a decision that is “equitable and just.” 38 C.F.R. § 4.6 (2017).

The VA treatment records after January 2008 do not show complaints, symptoms, or treatment for the Veteran’s right ankle disorder.

A VA examination was conducted in March 2009. The Veteran reported that he experienced intense pain with stiffness. The Veteran described having weekly flare-ups that last several hours and are aggravated by prolonged standing and ambulation. The Veteran denied any episodes of dislocation or recurrent subluxation. The examiner observed the Veteran experience pain when he stood on his heels and toes. The examiner found no effusion, no callosities, no breakdown, and did not note an unusual shoe wear pattern, no ankylosis, and no discrepancies in leg length. The examiner measured the Veteran’s right ankle dorsiflexion as 0 to 10 degrees and plantar flexion of 0 to 35 degrees. On dorsiflexion, the examiner noted that the Veteran experienced “pain in the last ten functional loss of fifteen degrees due to pain.” On plantar flexion, it was noted that the Veteran experienced “pain in the last twenty degrees with function loss of ten degrees due to pain.” In the natural position with the foot at ninety degrees to the ankle, the Veteran’s dorsiflexion was zero to twenty degrees and plantar flexion was zero to forty-five degrees. The examiner found no varus or valgus angulation of the os calcis in relationship to the long axis of the tibia and fibula. The examiner noted no bony deformity or arthritic change. The examiner did not respond to the question regarding functional loss from pain, fatigue, weakness, lack of endurance, or incoordination.

A VA examination was conducted in January 2013. The Veteran asserted a worsening of pain in the right ankle. He stated that this pain mostly occurred on rainy days. The Veteran reported flare-ups and stated that prolonged standing and ambulation exacerbate the pain. The examiner measured the Veteran’s right ankle plantar flexion as 25 degrees with objective evidence of pain at 5 degrees. The Veteran’s right ankle dorsiflexion was 15 degrees with objective evidence of painful motion beginning at 5 degrees. The left ankle’s plantar flexion was 45 degrees or greater and the dorsiflexion was 20 degrees or greater. The examiner found no objective evidence of painful motion in the left ankle. After repetitive use testing, the Veteran’s right ankle range of motion was 20 degrees plantar flexion and 10 degrees dorsiflexion. After repetitive use testing the examiner found the Veteran to have additional limitation in range of motion and function loss and/or impairment of the right ankle. In regards to function loss, the examiner noted that the Veteran’s right ankle had less movement than normal, weakened movement, excess fatigability, and pain on movement. The examiner also noted that the Veteran had localized tenderness or pain on palpation of the right ankle. The right ankle has no laxity compared with the opposite side on the anterior test or the inversion/eversion stress test. The examiner found that the Veteran did not have ankylosis. The examiner noted that imaging studies were performed on the right ankle and there were no abnormal findings.

On the April 2014 VA examination the Veteran reported right ankle swelling, especially after being in a standing position for a prolonged time. The examiner found that the Veteran’s right ankle plantar flexion was 45 degrees or greater and there was no objective evidence of painful motion. The Veteran’s right ankle dorsiflexion was ten degrees with no objective evidence of painful motion. The Veteran’s left ankle plantar flexion was 45 degrees or greater and dorsiflexion was 10 degrees. The left ankle had no objective evidence of painful motion.

On the May 2017 VA examination the Veteran reported that he experienced weekly flare-ups of the ankle that last hours with stabbing pain. The Veteran stated that he had functional loss or impairment of the right ankle and he described the functional loss of standing as well as in ambulation tolerance. The examiner found the Veteran’s right ankle range of motion to be abnormal or outside of the normal range. The Veteran’s right ankle dorsiflexion was 0 to 10 degrees and plantar flexion was 0 to 25 degrees. The examiner noted that the Veteran’s range of motion was normal for the Veteran because of pain. Also, the examiner found that the Veteran’s abnormal range of motion contributed to functional loss. The examiner observed that dorsiflexion and plantar flexion range of motion exhibited pain. The Veteran also experienced pain on weight bearing. The examination also revealed objective evidence of localized tenderness or pain on palpation of the right ankle. The left ankle was found to be normal in range of motion and did not exhibit pain. The examiner noted that the Veteran experienced a reduction in muscle strength in the right ankle. There is no ankylosis, instability, or dislocation of the right or left ankle. The examiner found, after imaging study of the ankle, that the Veteran has degenerative or traumatic arthritis of the right ankle. The examiner remarked that the Veteran’s right ankle disorder occurs upon weight bearing and active range of motion.

The foregoing evidence establishes that the Veteran is entitled to the maximum available rating for ankle limitation of motion without ankylosis for the period on appeal. The most probative evidence of record shows that during this time, range of motion in dorsiflexion was limited to 10 degrees with evidence of pain at 10 degrees. Further, the record shows that during the period on appeal the Veteran experienced weekly flare-ups of severe ankle pain, experienced pain on weight bearing, weakness, excess fatigability, and required regular use of an ankle brace. The overall range of motion findings fell below normal for the ankle, and existed in the presence of the more severe ankle symptoms. Thus, the Board finds that the criteria for a maximum 20 percent evaluation, for marked limitation of motion, under DC 5271 are met.

The Board has also considered the applicability of other diagnostic codes for the period on appeal. However, there is no evidence that the Veteran had ankylosis, malunion of the os calcis or astragulus, or an astragalectomy to warrant a higher rating under DCs 5270, 5272. 5273, or 5274. In sum, for the period on appeal, the criteria for a 20 percent evaluation, but no higher, for residuals of a right ankle fracture, to include arthritis,are met.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. Ap. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

ORDER

Entitlement to service connection for a skin disorder is denied.

Entitlement to service connection for sinus disorders is denied.

Entitlement to service connection for a lung disorder is denied.

A 20 percent evaluation for service-connected residuals of a right ankle fracture, to include arthritis, is granted.

REMAND

The Board again finds that additional development is warranted in this case before a decision may be rendered for entitlement to service connection for an acquired psychiatric disorder and a back disorder. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). When VA undertakes to provide an examination, it must ensure it is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

As to the claim of an acquired psychiatric disorder, the record suggests that the Veteran reported on the November 1969 separation examination that he was experiencing depression, excessive worry, and nervous trouble. However, in a March 1970 STRs medical examination for disability, the medical provider noted that the Veteran had no behavioral problems, was not especially nervous, and did not want a psychiatric evaluation. The May 2017 VA examination did not sufficiently discuss these records. Therefore, an addendum opinion must be obtained to address these issues.

As to the claim of a back disorder, the Veteran alleges that he injured his back when he fell during service and fractured his ankle in 1968. The May 2017 VA examination did not address the Veteran’s in-service injury and its relation to the Veteran’s current back disorder. Therefore, an addendum opinion must be provided.

Accordingly, the case is REMANDED for the following action:

1. Contact the examiner that performed the May 2017 VA mental disorder examination if available, or another appropriate medical professional if necessary, and obtain an addendum opinion. The claims folder must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the examination report.

The addendum must address the connection, if any, between the Veteran’s current psychiatric disorder and the STRs noting that he was experiencing excessive nervousness and worry and anxiety on separation, as well as the findings of the 1970 disability medical evaluation.

A complete rationale must be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran’s reports, the examiner must provide a rationale for doing so.

2. Contact the examiner that performed the May 2017 VA back examination if available, or another appropriate medical professional if necessary, and obtain an addendum opinion. The claims folder must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the examination report.

The addendum opinion must address the connection, if any, between the Veteran’s current back disorder and his May 1969 fall that resulted in the right ankle fracture.

A complete rationale must be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran’s reports, the examiner must provide a rationale for doing so.

3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998).

4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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