Decision A26039922

Citation Nr: A26039922
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 210812-178748
DATE: April 29, 2026

ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD), but no higher, is granted.

Entitlement to a rating of 20 percent, but no higher, for right ankle strain from October 18, 2023 to November 14, 2023 is granted.

For the remaining appeal period, entitlement to a rating in excess of 10 percent for right ankle strain is denied. 

FINDINGS OF FACT

1. The Veteran's tinnitus was incurred in service.

2. The Veteran's PTSD more nearly approximates occupational and social impairment with deficiencies in most areas, but not total occupational and total social impairment.

3. From October 18, 2023 to November 14, 2023, the Veteran's right ankle range of motion was 0 degrees plantar flexion.

4. For the remaining appeal period, the Veteran's right ankle range of motion was, at worst, to 40 degrees plantar flexion and 15 degrees dorsiflexion. 

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.309.

2. The criteria for entitlement to a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411.

3. The criteria for entitlement to a rating of 20 percent, but no higher, for right ankle strain from October 18, 2023 to November 14, 2023 have 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, DC 5271.

4. For the remaining appeal period, the criteria for entitlement to a rating in excess of 10 percent for right ankle strain 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, DC 5271.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1990 to December 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). 

In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held in March 2025. A transcript of the hearing is of record. 

Therefore, the Board may only consider the evidence of record at the time of the April 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Evidence submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, was not considered by the Board in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. Here, evidence was not submitted during a period the Board could not consider. Nonetheless, specific instructions for filing a Supplemental Claim are included with this decision. 

1. Entitlement to service connection for tinnitus.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.
 the Board in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. Here, evidence was not submitted during a period the Board could not consider. Nonetheless, specific instructions for filing a Supplemental Claim are included with this decision. 

1. Entitlement to service connection for tinnitus.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). 

Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service.  38 C.F.R. § 3.307(a)(1); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991).  Post-service development of an "organic disease of the nervous system" to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  Tinnitus is an "organic disease of the nervous system" and is subject to presumptive service connection under 38 C.F.R. § 3.309(a).  Fountain v. McDonald, 27 Vet. App. 258 (2015).  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In an April 2021 rating decision the AOJ found that the Veteran has a current diagnosis of tinnitus. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). Thus, the first element of service connection has been met. 

The Veteran was afforded a VA examination in April 2021. The Veteran reported the onset of his tinnitus was in 2011 post cannon shooting and gun range noise. The examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure because the Veteran reported the onset of tinnitus to be post-separation. The examiner noted that there was no report of tinnitus in service treatment records, at separation, or in medical records until the time of the claim. The examiner noted that current literature does not support late onset noise-induced tinnitus. 

In a March 2025 Board hearing, the Veteran testified that he worked in an artillery unit in service and began noticing his tinnitus in service, which has continued to the present. He clarified that he told the April 2021 VA examiner that his tinnitus began in 2011 because that is the date when it had significantly worsened. 

The Veteran has credibly reported exposure to loud noises in service and that he began experiencing tinnitus in service which has continued to the present. The Board acknowledges the negative VA opinion of record. However, the April 2021 examiner's opinion relied primarily on the fact that the Veteran reported the onset of his tinnitus as 2011, which the Veteran clarified at the March 2025 Board hearing. Therefore, resolving all doubt in favor of the Veteran, the Board finds that the Veteran's tinnitus had its onset in service and has continued to the present. 

Accordingly, the criteria for entitlement to service connection for tinnitus have been met. The claim is granted.  

Increased Ratings

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. §1155; 38 C.F.R. Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.
2011, which the Veteran clarified at the March 2025 Board hearing. Therefore, resolving all doubt in favor of the Veteran, the Board finds that the Veteran's tinnitus had its onset in service and has continued to the present. 

Accordingly, the criteria for entitlement to service connection for tinnitus have been met. The claim is granted.  

Increased Ratings

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. §1155; 38 C.F.R. Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.

"Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed.  Hart, at 509; see also 38 U.S.C. §5110 (b)(3); 38 C.F.R. § 3.400 (o)(2). For the PTSD and right ankle claims, the Board has considered all evidence of severity from the date of receipt of the March 19, 2021 VA Form 21-526EZ plus the "one-year lookback" period. 

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

2. Entitlement to a 70 percent rating for PTSD.

The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provide the following ratings for psychiatric disabilities: 

A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 

A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 

A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 

The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vasquez-Claudio, 713 F
 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vasquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9410. 

Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission." 38 C.F.R. § 4.126(a). The Board must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." Id. 

The Veteran was afforded a VA examination in April 2021. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran reported that he lived with his girlfriend and their son, and he had good relationships with them. He also reported good relationships with his mother and sister. He had one to two close friends and preferred to isolate. The Veteran reported symptoms of suspiciousness, lack of concentration, problems sleeping, isolation, irritability, frequent distressing dreams, avoidance, verbal outbursts, suicidal ideation without plan/intent, hypervigilance, low motivation, hopelessness, low energy, anxiety, and increased appetite. He also reported having difficulty maintaining relationships. The examiner noted that the Veteran experienced symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; flattened affect; circumstantial, circumlocutory, or stereotyped speech; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and obsessional rituals which interfere with routine activities.

In a September 2022 VA treatment record, the Veteran reported an incident at work where he yelled at human resources over false sexual allegations. He reported passive suicidal ideation but denied any plans. 

In a July 2023 VA treatment record, the Veteran reported that he attended his grandson's birthday party as well as a fourth of July gathering with his family. He also reported planning to attend a wedding in Chicago that summer. He reported that social situations were difficult, but he was able to manage them. He also reported that he and his wife made attempts to go out although it was difficult for them. 

In an April 2024 VA treatment record, he reported an altercation with his supervisor and that he does not handle confrontation well. 

In a March 2025 Board hearing, the Veteran testified that he does not sleep well. He spends time with his wife on the weekends. He is not friendly with people who do not know him. He testified that he had a physical altercation with his father's neighbor and has issues with his boss at work. He testified that he likes to stay at home and sometimes does not feel like showering. He feels he has to be perfect at work. He denied suicidal ideation but testified that he sometimes thinks about going to sleep and not waking up. He also testified that he works five days a week and his mood depends on how his work week goes. 

The Veteran submitted a private medical examination in June 2025. The private examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas. The Veteran reported that he stays away from people and wants to be home alone. He reported that he has a couple of friends and sees them about once a month. He visits his mother and sister on holidays. He reported that in his free time he likes to watch television and play video games. He is employed as a forklift operator. He has had altercations with his supervisor and has been written up multiple times. The private examiner noted that the Veteran experienced symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; impaired judgment; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective work and social relationships; obsessional rituals which interfere with routine activities; and impaired impulse control.

Based on the above, the Board finds that the symptomatology associated with the Veteran's PTSD more nearly approximates the 70 percent rating criteria. The
 his free time he likes to watch television and play video games. He is employed as a forklift operator. He has had altercations with his supervisor and has been written up multiple times. The private examiner noted that the Veteran experienced symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; impaired judgment; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective work and social relationships; obsessional rituals which interfere with routine activities; and impaired impulse control.

Based on the above, the Board finds that the symptomatology associated with the Veteran's PTSD more nearly approximates the 70 percent rating criteria. The Veteran's PTSD has been manifested by impaired impulse control, obsessional rituals interfering with routine activities, difficulty adapting to stressful circumstances, suicidal ideation, and the inability to establish and maintain effective work and social relationships. 

The Board finds that the symptoms the Veteran has do not cause both total social and total occupational impairment as required by a 100 percent disability rating. "Total" is defined as "whole, not divided; full; complete," and "utter, absolute." Black's Law Dictionary, 1498 (7th ed. 1999).  The Veteran maintains full-time employment. He has maintained a decades-long relationship, and he has a good relationship with his wife, mother, sister, and son. He has some social interactions and attempts to go out with his wife. Thus, the Board finds the evidence of record does not show the Veteran has total occupational and social impairment.  

In sum, the Board finds that the Veteran's level of impairment more nearly approximates occupational and social impairment with deficiencies in most areas. Accordingly, entitlement to a 70 percent rating for PTSD, but no higher is warranted. 

3.  Entitlement to a rating in excess of 10 percent for right ankle strain.

The Veteran's right ankle strain is rated under DC 5271, for limitation of motion of the ankle.  38 C.F.R. § 4.71a. 

Effective February 7, 2021, limited motion of the ankle is assigned a 10 percent when it is moderate, which is specified as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion.  A 20 percent rating is asked when the limited motion is marked, which is defined as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion.  38 C.F.R. § 4.71a (2021).  

For VA purposes, a normal range of ankle motion is from 45 degrees of plantar flexion to 20 degrees of dorsiflexion. 38 C.F.R. § 4.71, Plate II.  

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 background 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.").

In an October 2020 VA treatment record, the Veteran reported that he had been speaking with a pain doctor for the last few weeks regarding his right ankle. In a November 2020 VA treatment record, he requested a referral for his right ankle pain and an x-ray documented a small inferior calcaneal spur. 

The Veteran was afforded a VA examination in April 2021. The Veteran reported symptoms of weakness and walking with a slight limp. He also reported that if he had too much weight bearing then his pain increased.
 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.").

In an October 2020 VA treatment record, the Veteran reported that he had been speaking with a pain doctor for the last few weeks regarding his right ankle. In a November 2020 VA treatment record, he requested a referral for his right ankle pain and an x-ray documented a small inferior calcaneal spur. 

The Veteran was afforded a VA examination in April 2021. The Veteran reported symptoms of weakness and walking with a slight limp. He also reported that if he had too much weight bearing then his pain increased. 

During the April 2021 VA examination the Veteran denied experiencing flare-ups but reported functional loss or impairment described as the inability to run for fear of the ankle buckling, weakness with walking or standing for prolonged periods, and swelling of the medial aspect with weight bearing for longer than 1-2 hours. For active motion, plantar flexion was to 40 degrees and dorsiflexion was to 15 degrees. Passive motion was the same as active motion. There was evidence of pain with active motion and passive motion that did not result in/cause functional loss. There was no additional loss of function or range of motion with repetitive use. The examiner noted that pain and weakness significantly limited functional ability with repeated use over time. The examiner estimated plantar flexion to 30 degrees and dorsiflexion to 10 degrees. No muscle atrophy, ankylosis, or malunion of the calcaneus or talus was noted. The Veteran never had a talectomy. 

In a September 2021 VA treatment record, an x-ray noted no displaced fracture. The examiner noted pain, swelling, and instability of the right ankle. 

Throughout the appeal period, the Veteran attended physical therapy for his right ankle. His records contain several notations of right ankle pain. The physical therapy records contain range of motion measurements. On the report, it noted that normal range of motion in dorsiflexion should be "10-20" (presumably degrees), but the Veteran's range of motion measurements were 45, 48, and 50 degrees respectively on 3 different occasions.  This does not show limited range of motion but rather range of motion greater than normal. The report noted that normal range of motion in plantar flexion should be "40-50." In October 2023 plantar flexion was to 0 degrees, in November 2023 to 42 degrees, and December 2023 to 42 degrees. Increased pressure and tightness were noted. 

A December 2024 VA treatment record noted pain on palpation of the anterior talofibular ligament of the right ankle. Anterior drawer testing was positive. No pain was noted with ankle joint range of motion. Minimal pain was noted along the peroneal tendons.

In another December 2024 VA treatment record, the Veteran was issued a right ankle brace. 

A February 2025 x-ray documented right ankle instability. The examiner noted that mildly thickened anterior talofibular ligament signified chronic sequela of remote injury, and the ligament appeared less taut than typically seen signifying laxity. The examiner diagnosed a deltoid ligament complex sprain.

In a March 2025 Board hearing, the Veteran testified that he experiences a numb feeling in his ankle. He was given a sling to put on his ankle after work and was working on getting a prosthetic shoe. He testified that he elevated the leg after work for about an hour to an hour and a half. He testified that laying down overnight stiffens his ankle. When he wakes up his ankle is tender, but he can slightly move it. It loosens throughout the day. He testified that work aggravated his ankle. 

The Board finds the April 2021 VA examination adequate for rating purposes. The examiner reviewed the record, interviewed the Veteran, and examined the Veteran.  The examiner considered the Veteran's reported symptoms as well as completed active motion and passive motion testing. The Veteran denied experiencing flare-ups; thus, an estimate of range of motion during flare-ups was not required. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As to repeated use over time, the examiner adequately provided estimated range of motion findings. Lastly, the Veteran denied any treatment for his right ankle strain other than pain meditation. Therefore, the Board finds that the VA examination was conducted in an unmedicated state and is reflective of the Veteran's disability picture without the impact of medication.  Ingram v. Collins, 38 Vet. App. 130 (2025).

Based on the above, the Board finds that the Veteran is entitled to a 20 percent rating
 and passive motion testing. The Veteran denied experiencing flare-ups; thus, an estimate of range of motion during flare-ups was not required. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As to repeated use over time, the examiner adequately provided estimated range of motion findings. Lastly, the Veteran denied any treatment for his right ankle strain other than pain meditation. Therefore, the Board finds that the VA examination was conducted in an unmedicated state and is reflective of the Veteran's disability picture without the impact of medication.  Ingram v. Collins, 38 Vet. App. 130 (2025).

Based on the above, the Board finds that the Veteran is entitled to a 20 percent rating for marked limitation of the right ankle from October 18, 2023 to November 14, 2023. During this period, plantar flexion of the right ankle was to 0 degrees. The Board finds that during the remainder of the appeal period, a rating in excess of 10 percent is not warranted. At worst, the Veteran's plantar flexion was to 40 degrees and dorsiflexion was to 15 degrees. 

The Board has also considered additional ratings under the remaining DCs for the ankle. However, as there is no evidence of ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy, higher or separate ratings under DCs 5270, 5272, 5273, and 5274 are not warranted.

 

 

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Dennis, 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.