Citation Nr: 18160400
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 14-25 321
DATE:	December 27, 2018
ORDER
Entitlement to service connection for an acquired psychiatric disability is granted.
The claim for entitlement to medical care under 38 U.S.C. § 1702 is moot, and that appeal for benefits is dismissed.
Restoration of a 40 percent rating for service-connected lumbar intervertebral disc syndrome with degenerative arthritic changes from June 1, 2012 is granted. 
A rating in excess of 20 percent for residual sprain of the left ankle with degenerative joint disease is denied.
Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.
FINDINGS OF FACT
1. The Veteran’s acquired psychiatric disability is attributed to his service-connected disabilities. 
2. This decision grants service connection for an acquired psychiatric disability; thus, the issue of whether the Veteran is entitled to medical care for his psychiatric disability under 38 U.S.C. § 1702 is moot.
3. The overall evidence of record does not demonstrate that the Veteran’s service-connected lumbar intervertebral disc syndrome with degenerative arthritic changes exhibited improvement as of June 1, 2012, and the reduction in the disability rating from 40 to 20 percent as of that date was therefore improper. 
4. The Veteran’s residual sprain of the left ankle with degenerative joint disease has been productive of complaints of pain and loss of range of motion; however, ankylosis of the left ankle has not been demonstrated by X-ray findings or by analogous functional loss. 
5. The Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation.
CONCLUSIONS OF LAW
1. The criteria for service connection for an acquired psychiatric disability are met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.310.
2. The claim for entitlement to medical care under 38 U.S.C. § 1702 for an acquired psychiatric disorder is moot and must be dismissed.  38 U.S.C. §§ 1702, 1710, 7105(d)(5); 38 C.F.R. §§ 17.36, 20.101.
3. Restoration of the 40 percent disability rating for service-connected lumbar intervertebral disc syndrome with degenerative arthritic changes is warranted.  38 U.S.C. §§ 1155, 5110, 5112, 5107; 38 C.F.R. §§ 3.344, 3.500, 4.1, 4.10, 4.71a, Diagnostic Codes (DC) 5242-5243.
4. The criteria for entitlement to an evaluation in excess of 20 percent for residual sprain of the left ankle with degenerative joint disease are not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5210-5271.
5. The criteria for a total disability rating based on individual unemployability have been met.  38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from December 1973 to November 1979, and from October 1980 to November 1981.
This case was originally before the Board in January 2017, when the claims listed above were remanded for further development.  An additional claim of whether a 10 percent schedular rating for motor weakness, left lower extremity, was properly reduced to 0 percent, effective June 1, 2012 was additionally remanded for further development. 
In September 2017, the RO restored the Veteran’s 10 percent rating for his service-connected radiculopathy, left lower extremity (previously motor weakness of the left lower extremity) effective June 1, 2012.  Thus, this issue is no longer in appellate status.  
Additional development was completed with respect to the Veteran’s remaining claims.  The RO issued a supplemental statement of the case in October 2017 and the appeal is once again before the Board.
Service Connection
1. Entitlement to service connection for an acquired psychiatric disability. 
Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2012).  Generally, the evidence 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.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a).  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d).  
In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (2018).  Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated.  Allen v. Brown, 7 Vet. App. 439 (1995).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  Id.
Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.”  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).
The Veteran alleges that he suffers from an acquired psychiatric disability secondary to his service-connected disabilities.  In an August 2013 private opinion, the examiner opined that it is more likely than not that the Veteran’s psychological condition is primarily due to his service-connected medical conditions.  In a subsequent private February 2018 assessment, after interviewing the Veteran, reviewing his file, and reviewing medical journal articles, the private examiner opined that the Veteran’s service-connected left shoulder, back, left ankle, left wrist, and radiculopathy have caused the Veteran’s depressive disorder. She cited several studies to support her findings.  A negative opinion was also provided in a May 2017 Disability Benefits Questionnaire (DBQ). 
The Board has considered in detail the medical opinions of record.  In this regard, the Board finds that no one opinion is any more probative than the other.  The opinions are in relative equipoise.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail.).
Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran’s current acquired psychiatric disability and his service-connected disabilities.  As all elements of service connection have been satisfied, service connection for an acquired psychiatric disability is granted.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d), 3.310.  The nature and extent of the disorder is not before the Board at this time.
Medical Care Pursuant to 38 U.S.C. § 1702
2.  Entitlement to service connection for a mental illness for the purpose of establishing eligibility for medical treatment only, under the provisions of 38 U.S.C. § 1702.
As the Veteran has been awarded service connection for a psychiatric disorder, the issue of service connection for a mental illness for purposes of establishing eligibility for VA treatment under 38 U.S.C. § 1702 is moot.  See 38 C.F.R. § 17.37 (2018).  The Veteran will be afforded equal or greater access to VA treatment by virtue of his now established award of service connection for an acquired psychiatric disability.  See 38 U.S.C. § 1710 (2012); 38 C.F.R. § 17.36 (2018).  As such, the appeal as to this specific issue is dismissed.  See Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (noting that dismissal is the proper remedy to employ when an appeal has become moot).
Propriety of the Reduction
3. Whether a 40 percent schedular rating for lumbar intervertebral disc syndrome with degenerative arthritic changes was properly reduced to 20 percent, effective June 1, 2012.
The Veteran’s lumbar intervertebral disc syndrome with degenerative arthritic changes is rated under Diagnostic Codes (DCs) 5242-5243, which provides for ratings for diseases and injuries of the spine. 
The General Rating Formula for Diseases and Injuries of the Spine provides for the assignment of a 20 percent rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, when the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A rating of 40 percent is assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine.  A rating of 100 percent is awarded for unfavorable ankylosis of the entire spine. 
Note (1):  Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.
Note (2):  For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.
Note (3):  In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted.
Note (4):  Round each range of motion measurement to the nearest five degrees.
Note (5):  For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.
Note (6):  Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  Moreover, “chronic orthopedic and neurological manifestations” means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.  38 C.F.R. § 4.71a (2018).
Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months warrants the assignment of a 20 percent rating.  Intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is assigned a 40 percent rating.  A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months.
Note (1):  For purposes of evaluations under diagnostic code 5243 an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.
Note (2):  If intervertebral disc syndrome is present in more than one spinal segment provided that the effects in each spinal segment are clearly distinct evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine whichever method results in a higher evaluation for that segment.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2018).
In an October 2011 rating decision, the Veteran was informed that his 40 percent evaluation for intervertebral disc syndrome with degenerative arthritic changes was proposed to be reduced to 20 percent disabling.  
In a March 2012 rating decision, the RO reduced the disability evaluation from 40 percent to 20 percent disabling, effective June 1, 2012.  The Veteran maintains that his 40 percent rating should not have been reduced.  As support for his claim he notes that the RO eventually increased his service-connected back to 40 percent again effective May 3, 2017, demonstrating that his back never actually improved. 
Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.  Unless otherwise provided, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.  38 U.S.C. § 5112(b)(6).
The Veteran was sent a notice letter of the proposed reduction dated in October 2011.  Such communication fully detailed the proposal to reduce his disability evaluation and apprised him that he had 60 days to submit additional evidence to show that a reduction was not appropriate.  The reduction was implemented in a March 2012 rating decision, effective June 1, 2012.  Given the chronology of the process described above, the Board finds that the RO complied with the due process procedures required under 38 C.F.R. § 3.105(c) for reducing the Veteran’s disability rating by notifying him of his rights and giving him an opportunity for a hearing and time to respond.
The Board must next address whether the reduction was warranted.  In certain rating reduction cases, VA benefits recipients are to be afforded greater protections.  See 38 C.F.R. § 3.344.  That section provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension.  However, the provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve.  
The Veteran’s 40 percent evaluation was in effect for a period of less than five years (when it was reduced), and the provisions of 38 C.F.R. § 3.344 are not applicable in this instance.  For disability ratings in effect for less than five years, reexaminations disclosing improvement, physical or mental, in a service-connected disability will warrant a reduction in rating.  38 C.F.R. § 3.344(c).  Any material improvement must be reasonably certain to continue under the ordinary conditions of life.
Historically, the Veteran underwent a VA examination in March 2010. He reported that his back disability results in stiffness, fatigue, spasms, decreased motion, paresthesia and numbness.  He reported that pain can be exacerbated by physical activity and is relieved by rest and pain medications. The Veteran reported no incapacitation. Range of motion testing revealed 30 degrees of flexion with pain at 25 degrees.  The Veteran underwent an additional VA examination in May 2011.  He again reported that on average he could walk 50 yards.  He again reported stiffness, fatigue, spasms, decreased motion, paresthesia and numbness related to his back.  He stated that his pain is exacerbated by physical activity.  The Veteran stated that pain was relieved by medication.  Range of motion testing reflected 60 degrees of forward flexion.  No notation was made as to where pain starts in flexion.  Given that the Veteran reported constant pain in his back during the history portion of the examination, it is unclear why the VA examiner did not indicate where pain was present on flexion. 
The Board has also reviewed VA treatment records during the applicable time period. 
Applying the facts in this case to the criteria discussed above, the Board concludes that improvement of the Veteran’s service-connected lumbar intervertebral disc syndrome with degenerative arthritic changes has not been demonstrated based on the examinations of record.  The evidence of record continues to reflect that the Veteran’s back disability results in constant pain with range of motion most consistent with the 40 percent disability rating.  The May 2011 VA examination did not provide crucial information regarding where the Veteran felt pain on flexion testing.  While the flexion recorded on the May 2011 was consistent with a lower rating, the degree at which pain was noted could have provided information more consistent with the 40 percent disability rating that the Veteran has again been subsequently awarded by the RO in 2017.  
In light of the above discussion, the Board concludes that there was no improvement in the Veteran’s lumbar intervertebral disc syndrome with degenerative arthritic changes warranting a reduction in the assigned evaluation.  Accordingly, the 40 percent evaluation is restored, and the reduction is void ab initio.  Brown v. Brown, 5 Vet. App. 413, 422 (1993); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995).
Increased Rating
4. Entitlement to an increased rating for residuals of left ankle sprain with degenerative joint disease, currently rated as 20 percent disabling. 
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1 (2018).  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018).  The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994).
Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2018).
Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 
The Veteran’s left ankle disability is rated as 20 percent disabling under Diagnostic Code 5271 for marked limitation of motion of the ankle.  The Board notes that 20 percent is the maximum rating authorized under Diagnostic Code 5271 for limitation of motion of an ankle joint.  38 C.F.R. § 4.71a.  
Notwithstanding the above, the Board has also considered Diagnostic Code 5270, which may provide a basis for higher evaluations for the ankle.  Under 38 C.F.R. § 4.71a, a disability rating in excess of 20 percent will be warranted for an ankle disability when there is ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, (30 percent disabling under Diagnostic Code 5270); or 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 (40 percent disabling under Diagnostic Code 5270).  Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.”  Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 68 (4th ed. 1987)).
Here, the Board finds that ankylosis of the left ankle has not been shown.  Specifically, at a March 2010 VA examination it was noted that the Veteran had 5 degrees of dorsiflexion and 5 degrees of plantar flexion, with pain at 3 degrees.  The VA examiner specifically noted no ankylosis of the ankle.  At a May 2011 VA examination, the Veteran exhibited 15 degrees of dorsiflexion and 15 degrees of plantar flexion.  The VA examiner specifically noted no ankylosis of the ankle. The Veteran underwent an additional VA examination in May 2017.  The Veteran demonstrated 10 degrees of dorsiflexion and 10 degrees of plantar flexion.  The VA examiner specifically noted no ankylosis of the ankle. 
The Board notes that normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees.  38 C.F.R. § 4.71, Plate II.  The range of motion findings exhibited by the Veteran are inconsistent with a finding of ankylosis, or “immobility and consolidation” of the left ankle joint.  Moreover, the VA examiners throughout the period on appeal have observed no joint ankylosis of the Veteran’s left ankle.  Accordingly, the Board finds that the provisions of Diagnostic Code 5270 pertaining to ankylosis are not for application.
Notwithstanding the above, the Board has also considered other potentially applicable Diagnostic Codes that may provide a basis for separate evaluations for the left ankle.  Since ankylosis has not been shown, the provisions of Diagnostic 5272, which govern ankylosis of the subastragalar or tarsal joint, are likewise not applicable to the current claim.  Additionally, with regard to Diagnostic Code 5273, malunion of the os calcis or astragalus has not been demonstrated.  Finally, with regard to Diagnostic Code 5274, the medical evidence is without complaints of or treatment for an astragalectomy of the left ankle, which involves removal of the ankle bone.  As such, a rating under this provision is not warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5274.
In conclusion, the Board finds that the Veteran’s left ankle disability, which has been manifested by painful motion, more nearly approximates the rating criteria for a 20 percent rating for marked limitation of motion under Diagnostic Code 5271.  Further, the Board finds that the clinical evidence, as detailed above, does not show distinct time periods where a rating in excess of 20 percent is warranted.  Consequently, the Board finds that the currently assigned 20 percent rating throughout the rating period on appeal appropriately reflects the clinically established impairment experienced by the Veteran.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
TDIU
5. Entitlement to TDIU.
Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1).  Entitlement to a TDIU is granted where a Veteran’s service-connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him.  38 C.F.R. § 4.16 (2018).  The Veteran’s ratings for his service-connected disabilities meet the threshold schedular criteria for consideration of a TDIU in this case.  38 C.F.R. § 4.16(a).
Evidence of record reflects that the Veteran last engaged in substantially gainful employment in May 2016.  See VA Form 21-8940, signed November 2017.  The evidence reflects that the Veteran suffers from service-connected lumbar intervertebral disc syndrome with degenerative arthritic changes, residual sprain of the left ankle with degenerative joint disease, residuals of a dislocated left shoulder with degenerative changes, residuals of a chip fracture of the left wrist, radiculopathy of the left lower extremity and radiculopathy of the right lower extremity.  The Veteran has additionally been granted service connection for an acquired psychiatric disability in the decision above.
The Veteran has submitted a February 2018 statement from a private treating practitioner.  She noted that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder.  An additional February 2018 statement was submitted by a vocational consultant.  After reviewing the Veteran’s records, she opined that the Veteran is totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected back, left ankle, left shoulder, left wrist and radiculopathy of the left and right lower extremities. 
In light of the Veteran’s education level, occupational background, and functional limitations, and giving him the benefit of the doubt, the Board finds that the Veteran’s service-connected disabilities are sufficient to render him unable to obtain and maintain any form of substantially gainful employment in accordance with his occupational background and education level throughout the period on appeal.

Accordingly, based on all of the foregoing, the Board finds that entitlement to a TDIU is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.
 
CAROLINE B. FLEMING
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A.M. Clark, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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