Citation Nr: 1302852 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 00-12 232A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for heart disease. 2. Entitlement to an increased initial disability rating for the Veteran's adjustment disorder, rated as 10 percent disabling prior to August 29, 2000 and as 70 percent disabling from August 29, 2000 to November 22, 2001. 3. Entitlement to an initial disability rating in excess of 10 percent for plantar fasciitis of the left foot. 4. Entitlement to an initial disability rating in excess of 10 percent for plantar fasciitis of the right foot. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran had active service from June 1977 to June 1997. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of July 1998 and February 2007 by the Department of Veterans Affairs (VA) North Little Rock, Arkansas Regional Office (RO). This case has a long history both before the Board and the Court of Appeals for Veterans Claims (Court). As this history was described in detail in the Board's previous decision, the Board shall not repeat it. The Board does note, however, that the claims before it were previously dealt with in a December 2010 decision. The Veteran appealed these claims to the Court, and in September 2011, the Court vacated the Board's decision with respect to these claims and remanded them to the Board. The issue of entitlement to service connection for heart disease is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to January 4, 2000, the Veteran's adjustment disorder resulted in occupational and social impairment with occasional decrease in work efficiency, but not in occupational and social impairment with reduced reliability and productivity. 2. From January 4, 2000 to November 22, 2001, the Veteran's adjustment disorder resulted in occupational and social impairment with deficiencies in most areas, but not in total occupational and social impairment. 3. The Veteran's plantar fasciitis of the left foot produces only mild symptoms without adequate pathology to support the Veteran's complaints of pain. 4. The Veteran's plantar fasciitis of the right foot produces only mild symptoms without adequate pathology to support the Veteran's complaints of pain. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for adjustment disorder prior to January 4, 2000 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.130 Diagnostic Code (DC) 9440 (2012). 2. The criteria for a 70 percent rating for adjustment disorder from January 4, 2000 to November 22, 2001 have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.130 Diagnostic Code (DC) 9440. 3. The criteria for an initial rating in excess of 10 percent for left foot plantar fasciitis are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.71a DCs 5276-5284 (2012). 4. The criteria for a rating in excess of 10 percent for right foot plantar fasciitis are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.71a DCs 5276-5284. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). With respect to the claims being decided herein, VA has met its duty to notify for these claims. Service connection for these issues was granted in a July 1998 rating decision. The Veteran is now appealing the downstream issue of the initial rating that was assigned. Therefore, additional VCAA notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1131 (Fed. Cir. 2007), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records, records of his post-service VA treatment, private medical treatment records, and records from the Social Security Administration. The Veteran was afforded VA compensation and pension examinations germane to each of his claims on appeal. As noted above, these claims have been remanded numerous times. Most recently in a September 2011 Joint Motion, the Court vacated the Board's denials with respect to the Veteran's claim for service connection for heart disease, for an increased initial rating for his bilateral plantar fasciitis, and for an increased initial rating for a psychiatric disorder prior to November 22, 2001. With respect to the Veteran's claims for increased ratings for plantar fasciitis, the Joint Motion noted that the Board did not include these issues in its order. With respect to the Veteran's claim for an increased rating for his psychiatric disorder, the Joint Motion found that the Board did not support its decision with an adequate statement of reasons and bases. With respect to heart disease, the Joint Motion found that the Board erred by not remanding the case in order that the Veteran could undergo a VA examination. For each increased rating claim, the Board is able to address the concerns raised by the Joint Motion without the need for another remand. As the Joint Motion mandated that the Veteran undergo a heart VA examination, that claim must be remanded. Further, for reasons discussed in its previous decision, the Board finds that the directives in its previous remands have been fulfilled. Most notably, the Veteran underwent VA examinations for his conditions in response to August 2005 and November 2007 Board remands. The Board thus finds substantial compliance with its remand instructions. See D'Aries, 22 Vet. App. at 105. As the requested development has been completed, the case may proceed without prejudice to the Veteran. Stegall, 11 Vet. App. at 271. The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Increased Initial Rating Claims Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 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. Further, examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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 assigned. 38 C.F.R. § 4.7. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as the Veteran's rating for his adjustment disorder has already been staged, the Board must review the propriety of both the dates of the stage as well as the disability ratings assigned. When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Each of the Veteran's claims for an increased rating is evaluated separately below. Increased Initial Rating for Adjustment Disorder The Veteran's adjustment disorder has been rated as 10 percent disabling prior to August 29, 2000; as 70 percent disabling from August 29, 2000 to November 22, 2001, and as 100 percent disabling thereafter. The Veteran's disorder has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9440. Under the General Rating Formula, a 10 percent rating is assigned with occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. Id. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted when there is 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted when 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. Id. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. Id. The symptoms listed in Diagnostic Code 9440 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4,125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). GAF scores ranging between 61 to 70 is indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF score of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 31 to 40 indicates that the examinee has some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed person avoid friends, neglects family, and is unable to work). In its previous decision, the Board granted a 100 percent rating effective November 22, 2001. Thus, the only issue to consider is entitlement to an increased rating prior to that period. The evidence from that period consists of VA examinations, VA treatment records, and lay statements from the Veteran himself. The Veteran underwent a VA examination in May 1998. He described himself as "sometimes quite depressed," but stated that his depression was mild to moderate only and that he did not "consider it to be particularly problematic." He stated that he was looking for a job while living in Panama. Upon examination, the Veteran was noted to be casually groomed, and he conversed readily. The Veteran's mood was mildly depressed, and his affect was appropriate. His thought process was logical and tight. He had no gross impairment in memory. He was oriented in all spheres, had no hallucinations or delusions, and his insight and judgment were adequate. He reported no suicidal or homicidal ideation. He was diagnosed as suffering from adjustment disorder, and assigned a GAF score of 65. In his July 1999 Notice of Disagreement, the Veteran stated that he was constantly depressed. VA treatment records from October 1999 show the Veteran to be suffering from similar symptoms as described by the VA examination. In one record, the Veteran stated that he had been depressed for the past 2-3 years because of his inability to find a job. He reported decreased ability to concentrate while studying. However, the Veteran stated that he still enjoyed traveling and watching and playing sports. He denied suffering from panic attacks, anxiety, phobias, intrusive thoughts, and psychoses. Upon examination, the Veteran was described as adequately dressed and pleasant. He had no unusual behavior. His mood was down and stressed, and his affect congruent with his mood. His speech and thought processes were normal. He had no delusions, hallucinations, suicidal ideation, or homicidal ideation. He was diagnosed as suffering from major depressive disorder, and assigned a GAF score of 70. A second October 1999 treatment record found that the Veteran was serious yet friendly and cooperative. He had problems with sensitivity, depression, and a fear of rejection, but did not have social anxiety. The examiner described the Veteran as "motivated for change" and a good candidate for individual therapy. Records from January 2000 and onward, however, show a deterioration in the Veteran's condition. On January 4, 2000, the Veteran was described as anxious and restless, and he talked rapidly. He was concerned about legal issues regarding a shoplifting charge. Later in January, the Veteran was again described as anxious and nervous, and was obsessing over his shoplifting charge. In March 2000, the Veteran reported that the charge was thrown out. The psychiatrist, however, noted that the Veteran was more agitated and irritated than relieved, and that his thinking was paranoid. An April 2000 therapy note described the Veteran as anxious and tense and noted that he had difficulty relaxing and concentrating. The Veteran had depression and some psychotic symptoms. He reported hearing others call his name and that he talked to himself. He felt that others were setting him up, and stated that he was recently laid off. In an April 2000 letter, the Veteran described himself as absent minded. He stated that he was having difficulty holding a job and adjusting to civilian life. He stated that he was unable to get along with others, that he was anxious, and that he had trouble concentrating. In a May 2000 VA treatment record, the Veteran stated that "everything is falling apart." He described his mood as worse. He felt more paranoid and thought that others were out to get him. He stated that he was becoming socially withdrawn. He described obsessive behaviors and audio hallucinations. Upon examination, the Veteran was well dressed and groomed, cooperative, and had no behavioral issues. The Veteran's mood was bad, and his affect congruent to his mood. He had no evidence of disordered thought processes, and his judgment was good. The Veteran displayed paranoid and delusional thinking, but had no homicidal or suicidal ideation. He was diagnosed as suffering from moderate major depressive disorder, and assigned a GAF score of 21. In August 2000, the Veteran described himself as depressed and anxious. The psychiatrist noted that he was vague and digressive in his answers, and was reluctant to say where he lived. The Veteran, however, had insight into the fact that his actions did not make sense. A later August 2000 record stated that the Veteran felt better after taking medication. Though he still had mild paranoia, he had no true audio or visual hallucinations. On August 29, 2000, the Veteran again reported symptoms of mild paranoia. He stated that he was sleeping in his van because he did not feel safe in his apartment. He was well oriented, his affect appropriate and his anxiety mild. In September, the Veteran reported to an appointment dressed in unusual clothing and stated that he did not care how he dressed. In October 2000, the Veteran stated that he was unable to hold steady employment. He was described as having a serious disruption of thinking. A second October 2000 treatment record reflects that the Veteran was working as a security guard, and that he had a GAF of 51. Beginning in November 2000, the Veteran showed signs of improvement. In that month, he reported feeling better and described himself as less depressed. His concentration and sleep were improved. In December, the Veteran stated that he was less depressed, had more energy, and was a little more relaxed. In February 2001, the Veteran reported improvement in functioning, stating that he was more relaxed and not as depressed. A September 2001 record reflects that the Veteran was casually dressed and neatly groomed. He was described as pleasant and in good spirits. He reported being a little down, yet still working and still doing well. He was assigned a GAF of 51. In November 2001, the Veteran's condition again deteriorated. In late November 2001, he reported having quit his job and moved from the Little Rock area. Based on this report, the Board assigned the date of his 100 percent rating as the day he began unemployment, November 22. Based on the foregoing evidence, the Board finds that the Veteran's adjustment disorder prior to January 4, 2000 warrants an increased, 30 percent rating. Again, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9440. The evidence from this period shows that the Veteran suffered from depression, sleep impairment, and mild memory loss. These symptoms resulted in the occupational and social impairment with occasional decrease in work efficiency that is required for the 30 percent rating. That being said, the Veteran's symptoms from this period do not rise to the level described by the 50 percent rating. That rating is assigned when there is 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; and difficulty in establishing and maintaining effective work and social relationships. Id. Though the Veteran did suffer from disturbances of motivation and mood and difficulty in establishing and maintaining work relationships, his symptoms were not as severe as those described by the rating. The Veteran's speech was always reported as normal, he denied suffering from panic attacks, and his judgment and thinking were always intact. Further, the Veteran described his efforts to find and keep a job, and reported that he still enjoyed traveling and playing sports. The GAF scores assigned from this time are also higher than those that correspond to a 50 percent rating. From January 4, 2000 to November 22, 2001, the Board finds that the Veteran's symptoms and the occupational and social impairment that they produced most closely approximate a 70 percent rating. A 70 percent disability rating is warranted when 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. Id. The Veteran displayed many of these symptoms during this time period. Notably, the Veteran displayed obsessional behavior, near constant depression, a neglect of personal appearance, and an inability to establish and maintain effective relationships. Though the Veteran did show improvement in November 2000, the Board finds that this increased rating for the period prior to August 29, 2000 (the date at which the 70 percent rating has currently been assigned) most closely approximates the Veteran's complete symptomatology. Here again, however, the Veteran does not meet the criteria for a 100 percent rating. That rating is warranted for there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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 Veteran's symptoms, though severe, did not rise to this level. He suffered from audio hallucinations, but had no other symptom described by the 100 percent rating. The GAF scores assigned during this period were also above those corresponding to a 100 percent rating. Most importantly, the Veteran was employed during this period. The fact that the Veteran held a job necessarily means that there could not have been total occupational and social impairment, precluding a 100 percent rating. The Veteran's disability is also not so severe as to warrant an extraschedular rating. An extraschedular rating may be applied in exceptional cases involving marked interference with employment or frequent hospitalizations. 38 C.F.R. § 3.321 (2011). As outlined by the Court of Appeals for Veterans Claims, the Board uses a three-step inquiry to determine whether an extraschedular rating is warranted; "initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the applicable rating criteria are adequate to evaluate the Veteran's disability. As explained above, the Veteran's psychiatric symptomatology is contemplated under the General Rating Formula. As the Veteran's symptoms are already provided for in the applicable rating criteria, the first threshold of the Thun framework is not met, ending the Board's inquiry. Finally, the Board need not determine whether a TDIU is warranted prior to November 22, 2001, the date that the Veteran's 100 percent rating began. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. In order to remand such a claim, however, there must be cogent evidence of unemployability in the record. See Rice, 22 Vet. App. at 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In the instant case, the holding of Rice is inapplicable since the evidence of record clearly shows that the Veteran was employed during the period in question. Thus, there is no cogent evidence of unemployability and further consideration of a TDIU is not warranted. Increased Initial Ratings for Bilateral Plantar Fasciitis The Veteran is in receipt of separate, 10 percent ratings for plantar fasciitis of the right and left feet under 38 C.F.R. § 4.71a, Diagnostic Code 5284 (foot injuries, other). Under this Code, foot injuries warrant a 10 percent rating if moderate, a 20 percent rating if moderately severe, and a 30 percent rating if severe. The Board notes that the terms "moderate," "moderately severe," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. In September 1996 the Veteran sought treatment for chronic heel pain (left greater than right). He described "sharp" and "stinging" pain which began with prolonged standing (greater than five minutes) and then was aggravated by walking. He also complained of tingling localized to the heel. Examination of the left foot revealed no swelling, erythema, or warmth, although it was tender to palpation. The Veteran underwent a VA examination in May 1998. He complained of "extreme pain and tenderness" in his feet when standing. Upon examination, the VA physician found no deformity of the feet, callus formation, pes planus, or pes cavus. The Veteran favored neither foot on ambulation. No acute inflammation, increased warmth, or hyperemia was found, and the examiner elicited no tenderness on palpating the plantar fascia. In his July 1999 Notice of Disagreement, the Veteran stated that he was told that his feet problems would never be resolved and that he was afraid to stand even for five minutes. He reported pain even when wearing soft shoes, and that exercise that impacted his feet was uncomfortable. The Veteran sought VA outpatient treatment for heel pain (left greater than right) at a podiatry clinic in October 1999 and January 2000. At the October 1999 visit, palpation of the left heel caused pain. At the January 2000 visit, he reported that he had had a cortisone injection in the left heel one month before. While this apparently helped a little, his foot still hurt after long periods of standing. Examination revealed mild pain on palpation of the left heel and calluses on the posterior of the right heel. Between January and March of 2000, he was fitted with custom molds for his feet. In an April 2000 statement, the Veteran said his heels had not improved (although the right heel was not as symptomatic as the left). The left heel constantly troubled him, even if he sat down and massaged it. After lying down, he felt as if his heel had a ball in its middle. This sensation lasted until he walked about 20 steps. He said he had received hydrocortisone shots in his feet but this did not help. In a June 2000 statement, he wrote that he needed more injections to ease the foot pain. The Veteran sought VA outpatient treatment for left heel pain in June 2000. He reported that his first step in the morning was painful and that orthotics only helped about 50 percent. Examination revealed pain on palpation of the left heel and he received an injection. He again complained (in September 2000) of continued pain in his left heel. He said the last injection had worn off. He was using cork-and-leather arch supports which felt tight in his work shoes (he worked as a security guard). Flip-flop sandals apparently helped. Examination revealed pain on palpation of the left heel. He complained of painful heels in January 2003, but refused an injection. He was fitted for a Velcro insert in April 2003. In a July 2003 statement, the Veteran described his feet as his most "troubled impairments." He said he had limited walking and standing abilities and that he had to wear beach walkers with socks most of the time. This embarrassed him but was one of the only ways to relieve his symptoms. He complained of bad burning sensations and pain even while sitting down with his feet on the floor. The pain was not limited to just standing and walking. He was given prosthetics for his feet and a special orthopedic shoe, but neither cured the condition or aided him much. The Veteran's left heel had been injected but this did not stop the pain or cure the problem. At a November 2003 VA examination, the Veteran claimed that he could not stand over five minutes without severe, terrible pain all over his feet. The only shoe that he felt he could wear with any comfort was a flat rubber shower slipper, with socks. The pain was from the toes to the ankles in a stocking pattern. He reported having "terrible pain" regardless of what he did. Upon examination, sensation was reported as "protected" and muscle strength was 3+. Structure was objectively well within normal limits. His range of motion was full, normal, and unrestricted from toes to ankle. However, any time the Veteran's foot was touched, he would jump due to subjective tenderness. An x-ray revealed no fractures or heel spurs. The VA physician concluded that the Veteran had normal feet and that he could not explained the reported pain. After reviewing the claims file in February 2004, the VA examiner noted in an addendum that the Veteran's symptoms did not come close to those of a patient with plantar fasciitis. In a July 2004 letter, the Veteran wrote that he had been given numerous hydrocortisone shots and prosthetic shoes due to plantar fasciitis. He suggested that the VA examination was not thorough as it did not focus on his heels. The August 2007 Joint Motion remanded the issue of entitlement to an increased rating for plantar fasciitis of each foot. Importantly, the Joint Motion stated that - based on the Veteran's reports of pain upon use and flare-ups - a new VA opinion was required as to whether such pain could significantly limit functional ability during flare-ups or upon activity of the feet for long periods of time. In accordance with this instruction, the Veteran underwent a VA examination in December 2009. The examiner reviewed the Veteran's claims file, and he also took the Veteran's medical history from him directly. The Veteran described both his history of foot pain and its current effects. He described his pain as being worse in his left foot than in his right. He stated that his pain is regularly an 8 or 9 on a 10 point scale when he is on his feet; when he is resting and elevating his feet, the Veteran describes his pain as only a 6. Upon examination, the examiner noted that the Veteran was able to get in and out of a chair without difficult, and he was able to walk with a normal gait. The Veteran was able to get up on his toes and his heels. The Veteran had well-preserved arches with 0 degrees off the weightbearing line bilaterally. Examination of the Veteran's feet revealed no pain on manipulation, though the Veteran did complain of tenderness in both heels and the forefeet, left worse than right. The Veteran had no calluses on his feet. The examiner noted that the X-rays completed with the examination revealed the Veteran's feet to be normal, though the radiologist who completed the X-rays noted that the Veteran had mild hallux valgus deformities bilaterally. Otherwise, no other abnormalities were present. In summarizing his findings, the examiner noted that the Veteran had a history of bilateral plantar fasciitis, though his feet had a normal clinical appearance and he had normal X-rays of both feet. The examiner opined that the Veteran's pain exceeds the clinical examination of his feet. The examiner further noted that the Veteran did not report pain in his feet on motion testing. The Veteran demonstrated no additional limitation with repetitive testing, and the Veteran did not describe flare-ups. Other VA treatment records show that the Veteran has continued to complain of pain in his feet. A February 2009 VA record noted that though painfulness and tenderness were noted at the insertion of the plantar fascia, there were no functional limitations on standing and walking and there were no signs of abnormal weightbearing. A May 2009 VA record noted that the Veteran's strength and range of motion for his bilateral lower extremities were within normal limits, and the Veteran ambulated with a safe gait pattern. Importantly, at no time have any VA treatment providers found that the Veteran suffers from symptoms that are out of line with those described in his VA examinations. Given all of this evidence, the Board concludes that the 10 percent rating for each foot that is currently assigned is proper. Again, pursuant to Diagnostic Code 5284, moderate foot injuries warrant a 10 percent rating. The record is clear that the Veteran has made numerous, subjective reports of pain in his heels and in his feet. These reports, however, have not been corroborated by medical findings. VA examination reports of May 1998, November 2003, February 2004, and August 2009 indicate that his plantar fasciitis seems to primarily manifest by a subjective tenderness to palpation. In his most recent examination, the examiner described the Veteran's feet as having a normal clinical appearance with normal X-rays. If the Board were to base its rating on the clinical findings alone, it would assign a noncompensable rating. With consideration of the Veteran's complaints, however, it may be concluded there is moderate, but not moderately severe impairment. In consideration of the DeLuca factors, the Board notes that the most recent VA examination did not find that the Veteran's feet became painful upon use, and the Veteran did not report suffering from flare-ups. To the extent that the Veteran did report suffering from flare-ups and pain in his feet after repetitive use, the Board concludes that the 10 percent rating assigned accounts for these reports. Again, considering that the medical evidence of record does not show objective findings of the Veteran's claimed heel and foot pain, a 10 percent rating thus acknowledges the Veteran's subjective complaints pursuant to the DeLuca decision, and any higher rating would not be proper. The regulation instructs that disability due to pain is to be "supported by adequate pathology." 38 C.F.R. § 4.40. Four VA examiners have been unable to find any pathology to adequately support the Veteran's complaints of plantar foot pain. Therefore a higher rating than 10 percent based on pain is simply not supported by the clinical record. On a schedular basis, a higher 20 percent rating would only be warranted with evidence that the Veteran is suffering from a moderately severe foot injury. In this case, however, all of the clinical findings show that the Veteran is suffering from, at worst, a mild case of plantar fasciitis. Despite the Veteran's numerous complaints of pain both during flare-ups and after repetitive use, the examiner from the Veteran's most recent examination did not find the Veteran to suffer from either of these symptoms. The absence of these symptoms leads the Board to find that the Veteran is not suffering from a moderately severe foot injury in either foot, meaning that a 20 percent rating is not warranted. The Board has also considered whether rating the Veteran under any alternative diagnostic code would result in a higher or a separate rating, but concludes that none would. Ratings for injuries of the foot are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5276-84. A review of these Diagnostic Codes reveals that none approximates the Veteran's symptoms as well as that currently assigned. For instance, though the claims file is replete with medical evidence and VA examinations for the Veteran's feet, there is no evidence that the Veteran now suffers or has in the past suffered from: flatfeet (DC 5276); weak feet (DC 5277); claw feet (DC 5278); Morton's disease (DC 5279); hallux rigidus (DC 5281); hammer toe (5282); or malunion or nonunion of the tarsal or metatarsal bones (DC 5283). The only possible alternative diagnostic code that the Veteran could be rated under is Diagnostic Code 5280 covering hallux valgus, an "angulation of the great toe away from the midline of the body (toward the other toes) [that] can be caused by bunions." Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (citing Dorland's Illustrated Medical Dictionary 244, 729 (27th ed.1988)). Two X-rays have reported that the Veteran suffers from bilateral hallux valgus. A May 1998 X-ray found the Veteran to have "mild hallux valgus" bilaterally; X-rays conducted with the Veteran's most recent VA examination similarly found that the Veteran was suffering from a "mild hallux valgus deformity" on both his left and his right foot. Despite these findings, the Board notes that rating the Veteran under this alternative diagnostic code would not result in his receiving an increased rating. Under Diagnostic Code 5280, hallux valgus that has been operated on with resection of the metatarsal head is assigned a 10 percent rating, while severe hallux valgus - if equivalent to amputation of the great toe - is also assigned a 10 percent rating. As both X-rays that noted that the Veteran suffers from bilateral hallux valgus described his deformity as "mild," the Veteran would not be eligible for a compensable rating, let alone a rating in excess of the 10 percent currently assigned to each foot. In its April 2010 brief, the Veteran's representative argued that no VA examiner has considered whether the Veteran's bilateral hallux valgus could be secondary to his currently service-connected plantar fasciitis. The representative alleged that the examiner's failure to discuss this possibility rendered their examinations inadequate. For three reasons, the Board finds this argument without merit. First, the representative construes the examiners' non-discussion of this issue to be evidence that their examinations are inadequate. A review of the various VA examinations, however, reveals that these examinations were thorough. The Board interprets the fact that these examiners did not discuss the Veteran's hallux valgus not as evidence of their inadequacy, but instead an acknowledgement of the radiologists' findings that the Veteran's hallux valgus is mild. Second, the Veteran's lay statements have never discussed his suffering from pain in his toe or in the part of his foot where he suffers from hallux valgus. Instead, his complaints center on heel and foot pain in general. The Veteran has not submitted a claim for service connection for hallux valgus on either a direct or secondary basis, and the Board is reluctant to infer a claim on his behalf that is supported by neither medical nor lay evidence. Finally, on a practical basis, even assuming arguendo that the Veteran's hallux valgus is related to his current disability or that he is entitled to service connection for this deformity on a direct basis, the current evidence indicates that this deformity would be assigned a noncompensable rating. Given that the Veteran's claims have been on appeal for a long time, the Board believes that it would be improper and not in the Veteran's interest to create a claim out of whole cloth, have the Veteran undergo another examination, and once again delay the final adjudication of his claims - especially when this action would result in no benefit whatsoever to the Veteran. As above, the Veteran's disability is also not so severe as to warrant an extraschedular rating because the applicable rating criteria are adequate to evaluate the Veteran's disability. The evidence shows that the Veteran suffers from subjective complaints of pain in his feet without clinical evidence that he is suffering from a particular disability. The Veteran has been rated under the diagnostic code for foot injuries, and the Board finds that this rating covers his specific complaints. As the Veteran's symptoms are already provided for in the applicable rating criteria, the first threshold of the Thun framework is not met, ending the Board's inquiry. In summary, the preponderance of the evidence reflects that - since the initial grant of service connection - a rating in excess of 10 percent is not warranted for either foot under Diagnostic Code 5284 or any alternative diagnostic code. ORDER A 30 percent rating for the Veteran's adjustment disorder for the period prior to January 4, 2000 is granted. A 70 percent rating for the Veteran's adjustment disorder for the period from January 4, 2000 to November 22, 2001 is granted. An increased, 20 percent rating for the Veteran's plantar fasciitis of the left foot is denied. An increased, 20 percent rating for the Veteran's plantar fasciitis of the right foot is denied. REMAND In the September 2011 Joint Motion, the parties found that the Board erred by not ordering a new VA examination to determine whether the Veteran has a heart disability that is related to service. Pursuant to their order, the Board shall remand the Veteran's claim in order that he may undergo such an examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed heart condition. The claims folder should be made available to and reviewed by the examiner. All indicated tests should be accomplished. After examining the Veteran, the examiner is asked to answer the following questions: a) From what (if any) heart disability does the Veteran currently suffer? b) Is it at least as likely as not that any identified heart disability had its onset in or is related to the Veteran's active service? In answering this question, please acknowledge the Veteran's in-service complaints of chest pain and later diagnoses of cardiomegaly and sinus bradycardia. A clear rationale for all opinions given is needed. A discussion of the facts and medical principles involved and the Veteran's lay assertions should be considered in giving this opinion. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. Then readjudicate the appeal. If the benefit sought on appeal remains denied, the Veteran and his accredited representative should be issued a Supplemental Statement of the Case (SSOC). The Veteran and his representative should be given the opportunity to respond to the SSOC. The appellant has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs