Citation Nr: 1441663 Decision Date: 09/18/14 Archive Date: 09/30/14 DOCKET NO. 09-13 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a rating in excess of 40 percent for a lumbar spine disability. 2. Entitlement to a rating in excess of 20 percent for plantar fasciitis of the right foot. 3. Entitlement to a rating in excess of 20 percent for plantar fasciitis of the left foot. 4. Entitlement to a rating in excess of 30 percent for adjustment disorder with depressed and anxious features. 5. Entitlement to a rating in excess of 20 percent for a cervical spine disability. 6. Entitlement to a compensable rating for right knee instability status post medial meniscus tear with arthroscopic repair. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to March 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In June, 2014, the Veteran appeared at a Board hearing at the RO. A transcript of that hearing is in the claims file. The record raises the possibility of claims of entitlement to service connection on a secondary basis for hypertension and for peripheral neuropathy of both feet, which have not been addressed in the first instance by the RO. As such, the Board has no appellate jurisdiction over them. These claims are referred to the RO for appropriate action. The issue of entitlement to an increased disability rating for right knee instability and entitlement to an increased disability rating for cervical strain are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Plantar fasciitis in the right foot is manifested by a disability picture that more closely approximates a severe disability due to continuous pain and limitations on walking and standing. 2. Plantar fasciitis in the left foot is manifested by a disability picture that more closely approximates a severe disability due to continuous pain and limitations on walking and standing. 3. Adjustment disorder with depressed and anxious features is productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; reduced reliability and productivity due to this disability was not shown by the record. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent for plantar fasciitis of the right foot have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2013). 2. The criteria for a disability rating of 30 percent for plantar fasciitis of the left foot have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2013). 3. The criteria for a disability rating greater than 30 percent for adjustment disorder with depressed and anxious features have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9440 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Claim Withdrawn A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. Withdrawal of a substantive appeal may be made by the Veteran. 38 C.F.R. § 20.204. At the June 2014 hearing, which was reduced to writing in the transcript, the Veteran withdrew his appeal for an increased disability rating for lumbar spine disability. As there remains no allegation of error of fact or law for appellate consideration with respect to this claim, the Board does not have appellate jurisdiction to review it. 38 U.S.C.A. § 7105. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In August 2009, the RO sent the Veteran a letter, prior to adjudication of his claims, providing notice, which satisfied the requirements of the VCAA. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No additional notice is required. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records with respect to the claims decided below have been obtained and considered. The Veteran was afforded VA examinations in January 2011 and May 2013. There is no argument or indication that the examinations or opinions are inadequate. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As VA satisfied its duties to notify and assist the Veteran, no further notice or assistance is required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §3.159. Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. 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." Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, the Veteran's disability pictures have been consistent and staged ratings are not warranted. Foot The Veteran is seeking increased disability ratings for his right and left foot plantar fasciitis, which are currently rated as 20 percent disabling for each foot, under Diagnostic Code 5284, for other foot injuries, which provides a 10 percent rating for impairment of moderate degree, a 20 percent rating for moderately severe impairment, and a 30 percent rating for severe impairment. Actual loss of use of a foot is rated as 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Additional disability ratings criteria for foot disabilities include those for weak foot, claw foot, metatarsalgia, hallux valgus, hammer toe, and malunion or nonunion of the tarsal bones. As none of those disabilities are shown, the rating criteria are not applicable here. Another Diagnostic Code sometimes used for plantar fasciitis is that for pes planus or flat foot, Diagnostic Code 5276. Under these criteria, for a severe disability, a 20 percent rating is assigned if unilateral and a 30 percent rating is assigned if bilateral. 38 C.F.R. § 4.71a. A severe disability is characterized by objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, indication of swelling on use, and characteristic callosities. Id. A maximum 30 percent rating is awarded for a unilateral and a maximum 50 percent rating is awarded for a bilateral disability that is pronounced. Id. A pronounced disability is manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliance. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. On January 2011 VA examination, the Veteran complained of constant pain in his feet which had become progressively worse and did not respond to most treatment. In addition to pain, the Veteran had fatigability and lack of endurance, all accentuated with standing and walking. He was able to stand for only 15 to 30 minutes at a time and walk less than one mile. After about three hours on his feet, he also experienced numbness and tingling in both feet. On physical examination there was evidence of tenderness along the longitudinal plantar arches of both feet, but no evidence of painful motion, swelling, instability, weakness, or abnormal weight bearing. No other foot deformities were noted. The Veteran walked with a limp as a result of his right knee disability. X-rays showed no acute osseous injuries of either foot, although there was a plantar calcaneal enthesophyte shown on both feet. On the May 2013 VA examination, the examiner noted diagnoses of bilateral hallux valgus (described in the report as asymptomatic), bilateral plantar fasciitis of moderate severity, and right calcaneal spur. The Veteran reported that he had pain constantly in the bottoms of his feet which had gotten worse over time. On examination, there was tenderness to palpation on the bottoms of both feet. X-rays showed no deformities, although a calcaneal spur was visualized on the right foot. The examiner noted that the disability impacted the Veteran's ability to work because he was not able to engage in prolonged walking, standing, running, or wearing tight shoes. The Veteran testified at hearing that his primary symptoms of plantar fasciitis are continuous pain, which is noticeable even before he gets out of bed in the morning, as well as numbness and tingling in the feet. He had received physical therapy for his feet and thicker insoles for his shoes, but had not experienced any resulting relief of his pain. In light of the Veteran's testimony about unrelenting pain in the bottoms of his feet, even while still in bed in the morning, with no relief from any of the therapeutic measures tried, and the evidence of the effect of the disability on his ability to walk and stand for more than 15 minutes at a time, the Board finds that the disability picture more nearly approximates one of severe disability. 38 C.F.R. § 4.7. As such, a 30 percent disability rating is warranted for each foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Adjustment Disorder The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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), is assigned a 30 percent rating. 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, merits a 50 percent rating. 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, is given a 70 percent rating. 38 C.F.R. § 4.130. In determining the correct disability rating, the Board also considers the symptoms as discussed in the psychiatric standards referenced in statute, the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), and Fifth Edition (DSM-V) and Global Assessment of Functioning (GAF) scores. GAF scores are 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 the DSM IV, page 32). 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 51 to 60 indicates the examiner's assessment of moderate symptoms (e.g., a 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 61 to 70 denotes mild symptoms or some difficulty in social and occupational functioning. Although the Rating Schedule states that the rating agency must be familiar with the DSM IV, VA does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Rather, GAF scores are but one factor to be considered in conjunction with all the other evidence of record. At the January 2011 VA examination, the Veteran reported a history of chronic problems communicating with his wife and having very few friends. He has no interests or hobbies due to lack of interest and reported having poor appetite, little motivation, and low energy. He tended to isolate himself even from his wife and children, although he held a job as a medical clerk at VA. He had sleep impairment, nightmares, and occasional violent outbursts, as well as decreased concentration. The examiner assigned a GAF score of 60 and stated that the Veteran's disability manifested in occasional decrease in work efficiency and intermittent inability to perform occupational tasks. At the May 2013 VA examination, the Veteran was diagnosed as having adjustment disorder with mixed anxiety and depressed mood, productive of 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 medication. The examiner assigned a GAF score of 70 and noted that the Veteran's primary care physician was frequently reminding him to change his outlook. He tended to get angry when he woke up in pain every morning, and his physician advised him that he would always have pain and expecting it to go away was unrealistic. The Veteran stated that he just wanted to be alone, and had no contact with his mother or siblings, had no friends or hobbies, and tended to isolate himself even from his spouse and children. He worked the nightshift as a medical clerk at the VA hospital and no one really associated with him, likely because of his angry outbursts and the "black cloud" that hung over him all the time. He took regular anti-depressant and anti-anxiety medications with moderate response and attended individual psychotherapy every three month. The Veteran's symptoms were noted to consist of depressed mood, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances include work. At his hearing, the Veteran testified that he had been working for about 10 years at VA, but his supervisor was displeased with the amount of leave he used and felt he should go part-time. He reported an increased use of medication, frequent angry outbursts because of his level of physical pain, and having no real friends except his wife. He also experienced some short-term memory loss and was questioning his decision to remain in the work force. He had attended some classes through VA in anger management, depression, and anxiety. The Board notes that the Veteran has advised the RO that his primary mental health provider feels his disability would be more correctly characterized as posttraumatic stress disorder (PTSD) rather than adjustment disorder with depressed and anxious features. The Board further notes that a separate claim of service connection for PTSD was once considered and denied. Inasmuch as the condition on appeal is the same as that for which the Veteran receives treatment, and because mental health or psychiatric disabilities are all rated under the same criteria based on symptomatology and disability picture, the Veteran is not prejudiced by the continued characterization of this claim as adjustment disorder with depressed and anxious features. After considering the evidence discussed above, as well as treatment notes from the Veteran's ongoing therapy, the Board finds that a disability rating of 50 percent is warranted. A still higher rating is not warranted because the Veteran is still able to maintain a relationship with his wife and children (albeit strained) and to maintain a regular job working at the VA hospital. The Veteran's GAF scores at treatment visits and on VA examination average about 60, which the DSM describes as appropriate for moderate symptoms such as a flat affect, occasional panic attacks, or moderate difficulty in social or occupational functioning, having few friends and some conflicts with peers. This is reflected in the Veteran's lack of interest in social activities and tendency to isolate himself, as well as his "black cloud" in the work place, angry outbursts, and lack of friends. Although the May 2013 VA examiner selected the criteria for a 10 percent rating as describing the Veteran's disability picture, the specific symptoms indicated are more commonly associated with the 50 percent disability rating, to include difficulty with relationships, difficulty in stressful circumstances, and chronic sleep impairment. Therefore, the disability picture more closely approximates one of reduced reliability and productivity, as contemplated in the 50 percent rating. 38 C.F.R. § 4.130. Extraschedular Rating Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, however, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology with respect to both his plantar fasciitis and his adjustment disorder. The primary symptom of the Veteran's plantar fasciitis is pain, which is severe, and the assigned disability rating is for severe disability. The Veteran's adjustment disorder is manifested by depressed and anxious features and the nature of his symptoms is encompassed by the rating criteria. As the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are adequate and referral for extraschedular consideration is not required. ORDER The appeal for a disability rating higher than 40 percent for lumbar spine disability is dismissed. Entitlement to a disability rating of 30 percent for plantar fasciitis of the right foot is granted. Entitlement to disability rating of 40 percent for plantar fasciitis of left foot is granted. Entitled to a disability rating of 50 percent for adjustment disorder with depressed and anxious features is granted. REMAND The Veteran seeks a compensable disability rating for his right knee instability. The Board notes that separate ratings of 10 percent for medial meniscus tear and 10 percent for limitation of extension of the right knee are in effect and are not currently on appeal. The Veteran testified at hearing that he had been afforded recent treatment and an MRI examination of the right knee which indicated continued worsening of the disability. The record was held open for 90 days and the Veteran submitted some medical records. However, the records of recent VA treatment and the MRI examination discussed at hearing have not been provided or incorporated in the electronic record. As the current level of disability is the focus of the claim, a remand to obtain all recent relevant records is warranted. The Veteran also seeks an increased disability rating for cervical spine strain, currently rated as 20 percent disabling, based at least in part on the radiating pain in his shoulders and arms. The record indicates that the Veteran has a diagnosis of polyneuropathy, which may or may not be related to his arm pain, as carpal tunnel syndrome. An examination and clarifying opinion are needed to determine if the Veteran has any neurological symptoms related to his cervical spine strain for which an increased rating, to include a separate compensable rating, are warranted. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain copies of all treatment on the Veteran's right knee disability since 2013, to specifically include MRI findings from June 2014. If, after all due diligence, it is determined that any of the records are unavailable or further efforts to obtain them would be futile, the Veteran and his representative should be so advised in accordance with the provisions of 38 C.F.R. § 3.159(e). 2. The RO should also undertake any other indicated development suggested by the development ordered above, to include arranging for an additional VA examination of the right knee if necessary. 3. Afford the Veteran an appropriate VA examination to determine the nature and severity of his cervical spine disability, to specifically include any neurological symptoms. Any diagnostic imaging or testing deemed necessary should be performed. The examiner is advised that records indicate possible diagnoses of small fiber polyneuropathy and carpal tunnel syndrome in 2013. As such, the examiner should indicate all conditions diagnosed relative to the complaints of arm and shoulder pain, the symptoms of each such condition, and whether any of these is at least as likely as not (probability of 50 percent or greater) caused or aggravated by or otherwise related to his service-connected cervical disability. The examiner should provide the rationale for any opinions rendered. A copy of the claims file should be provided to the examiner for review. 4. On completion of the foregoing, the claim should be adjudicated. If any aspect of the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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. 2013). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs