Citation Nr: 1510300 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 10-30 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for bilateral plantar fasciitis. 2. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1995 to April 1995 and from February 1998 to June 2006. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. On his July 2010 substantive appeal, the Veteran indicated that he wanted a video conference hearing before the Board. In February 2015, the Veteran's representative contacted the RO and withdrew the request for a hearing. Therefore, the request for a hearing has been withdrawn. A June 2012 rating decision denied service connection for a lumbar spine disorder and granted service connection for a cervical spine disorder, assigning a 10 percent rating. The Veteran submitted a timely notice of disagreement (NOD) as to this rating decision in August 2012. The RO issued a statement of the case (SOC) in November 2014. In a February 2015 statement titled "VETERAN'S POSITION STATEMENT, WAIVER OF HEARING, AND REQUEST FOR AN INFORMAL CONFERENCE," the Veteran's representative stated, in pertinent part, that the issues of service connection for a lumbar spine disorder and an increased rating for the cervical spine disability "remain on appeal." Although the Board finds that this statement could reasonably be construed as a statement in lieu of a VA Form 9 (substantive appeal), the Board finds that it is untimely. Appellate review is initiated by an NOD and completed by the filing of a substantive appeal after an SOC has been furnished to the appellant. See 38 U.S.C.A. § 7105(a) (West 2014); 38 C.F.R. § 20.200 (2014). A substantive appeal must be filed within 60 days from the date of mailing of notice of the result of initial review or determination, or within the remainder of the one year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. Such notice must be in writing. See 38 U.S.C.A. § 7105(b)(2); 38 C.F.R. § 20.302(b) (2014). Absent a properly perfected appeal, the RO may close the appeal and the decision becomes final. See 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 19.32 (2014); Roy v. Brown, 5 Vet. App. 554, 556 (1993). Turning to the facts in the instant case, in order for the Veteran's substantive appeal to have been timely filed as to the issues decided in the June 2012 rating decision, it must have been submitted by June 2013, one year after the date of the June 2012 rating decision. Alternatively, the Veteran's substantive appeal must have been filed within 60 days of the issuance of the SOC (i.e., by January 2015). Instead, the Veteran's statement in lieu of his VA Form 9 was received in February 2015. In Percy v. Shinseki, 23 Vet. App. 37 (2009), the United States Court of Appeals for Veterans Claims (Court) held that an untimely substantive appeal is not a jurisdictional bar to consideration of a veteran's claim and that the RO and the Board may accept a substantive appeal even if it is not timely. In the Percy case, the Court specifically found that the RO had essentially waived any objections it might have offered to the timeliness and had implicitly accepted the Veteran's appeal because the issue was treated as if it were timely perfected for more than five years before being raised by the Board in the first instance. The Board finds, however, that this case is distinguishable from Percy. In particular, the Veteran in this case never submitted an actual VA Form 9 and did not specifically contend that he was filing an appeal as to the issues addressed in the November 2014 SOC. Notably, the Veteran's representative filed VA Form 9s for all other issues on appeal and clearly understood the process of appealing matters to the Board in a timely manner. Further, the RO did not appear to waive any objections it might have offered to the timeliness of the appeal. The RO also did not implicitly accept the Veteran's appeal, as shown by the fact that the issues have not been certified to the Board as being on appeal. Accordingly, the issues of service connection for a lumbar spine disorder and a rating in excess of 10 percent for the cervical spine disability are not in appellate status, and no further consideration is required. The Board also notes that the Veteran was granted special monthly compensation (SMC) under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of residuals, status post right shoulder arthroscopy from May 11, 2010 to July 1, 2010, and from February 3, 2012 to May 31, 2012. See December 2011 and November 2012 rating decisions. The Veteran did not submit a NOD with the SMC award or effective dates assigned in these rating decisions. Instead, the representative's February 2015 statement contends that the Veteran should be awarded "continuous, higher level" SMC based on his need for aid and attendance. Accordingly, the Board finds that the issue of SMC based on the need for aid and attendance has been raised by the record in a February 2015 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. The Veteran's bilateral foot disability, diagnosed as plantar fasciitis, pes planus, and degenerative joint disease, is of moderate severity with pain on manipulation and use of feet. 2. The Veteran's PTSD disability is manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent, but no higher, for bilateral plantar fasciitis have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5276, 5284 (2014). 2. The criteria for a rating of 100 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). VA has met its duty to notify and assist the Veteran in this case. In a January 2009 letter, VA informed the Veteran of the evidence necessary to substantiate his claim for service connection, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. The January 2009 also letter provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment and personnel records, private medical examinations, lay statements, and VA examinations have been associated with the claims file. The Board notes specifically that the Veteran was afforded VA examinations in May 2009, August 2010, November 2011, and December 2011 to address his PTSD disability. The Veteran was afforded VA examinations in May 2009 and November 2011 to address his bilateral foot disability. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the VA examinations obtained in this case are adequate as they are predicated on a review of the claims folder and medical records contained therein; contain a description of the history of the disability at issue; document and consider the Veteran's complaints and symptoms; fully address the relevant rating criteria; and contains a discussion of the effects of the Veteran's PTSD and foot disability on his occupational and daily activities. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Importantly, the Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Therefore, the Board finds that there is no reason to believe that any possible outstanding records would contain information relating to the Veteran's claims. Disability Rating Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Recently, the Court held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Rating for Bilateral Foot Disability The Veteran's bilateral plantar fasciitis disability has been rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5299-5276. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27 (2014). Diagnostic Code 5276 for acquired flatfoot, provides a 50 percent rating for pronounced bilateral acquired pes planus manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo Achilles on manipulation, which is not improved by orthopedic shoes or appliances. A 30 percent rating is assigned for severe bilateral pes planus, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 10 percent rating is warranted for moderate pes planus where the weight-bearing lines are over or medial to the great toes and there is inward bowing of the tendo Achilles and pain on manipulation and use of the feet. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Diagnostic Code 5277 provides ratings for bilateral weak foot. For symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness, the underlying condition is to be rated, with a minimum rating of 10 percent. 38 C.F.R. § 4.71a. Diagnostic Code 5278 provides ratings for acquired claw foot (pes cavus). Slight acquired claw foot is rated noncompensably (0 percent) disabling. Acquired claw foot with the great toe dorsiflexed, some limitation of dorsiflexion at the ankle, definite tenderness under metatarsal heads, bilateral or unilateral, is rated 10 percent disabling. Acquired claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads, is rated 20 percent disabling for unilateral involvement, and 30 percent disabling for bilateral involvement. Acquired claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity, is rated 30 percent disabling for unilateral involvement, and 50 percent disabling for bilateral involvement. 38 C.F.R. § 4.71a. Diagnostic Code 5279 provides a 10 percent disability rating for anterior metatarsalgia (Morton's disease), whether unilateral or bilateral. 38 C.F.R. § 4.71a. Diagnostic Code 5280 provides ratings for unilateral hallux valgus. Unilateral hallux valgus that is severe, if equivalent to amputation of great toe is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is rated 10 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5281 provides that unilateral severe hallux rigidus is to be rated as severe hallux valgus. A Note to Diagnostic Code 5281 provides that the rating for hallux rigidus is not to be combined with claw foot ratings. Diagnostic Code 5280 provides that severe unilateral hallux valgus, if equivalent to amputation of great toe, is to be rated 10 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5282 provides ratings based on hammer toes. Hammer toe of a single toe is rated noncompensably (0 percent) disabling. Unilateral hammer toe of all toes, without claw foot, is rated 10 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5283 provides ratings based on malunion or nonunion of tarsal or metatarsal bones. Moderate malunion or nonunion of tarsal or metatarsal bones is rated 10 percent disabling; moderately severe malunion or nonunion of tarsal or metatarsal bones is rated 20 percent disabling; and severe malunion or nonunion of tarsal or metatarsal bones is rated 30 percent disabling. A Note to Diagnostic Code 5283 provides that malunion or non-union of tarsal or metatarsal bones with actual loss of use of the foot is rated 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5284 provides ratings for residuals of other foot injuries. Moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and severe residuals of foot injuries are rated 30 percent disabling. A Note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a. Although Diagnostic Code 5284 contemplates residuals of foot injuries, the Board finds that the Veteran's bilateral foot disability, which specifically includes a diagnosis of pes planus, is more appropriately rated under Diagnostic Code 5276 for acquired flatfoot (i.e., pes planus). Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran's bilateral foot disability warrants a compensable rating and finds that a 10 percent rating is warranted. The evidence of record includes a May 2009 VA examination. During the evaluation, the VA examiner noted that the Veteran's bilateral foot problem began in service and was diagnosed as pes planus. Subjective symptoms included pain, weakness, and fatigability. The Veteran reported that he would experience a flare-up of symptoms if he stood for more than 30 minutes. Upon physical examination of the right and left foot, dorsiflexion and plantar flexion of the second great toes and third toes were normal. Fourth and fifth toes were limited. There was pes planus and mild plantar tenderness to the distal aspect of the fifth metatarsal. There were no functional limitations with standing and walking. There was no evidence of Achilles tendon misalignment or pain with manipulation. X-rays revealed mild, bilateral symmetrical pes planus deformity and mild degenerative changes in the distal interphalangeal joint spaces of the fourth and fifth toes, bilaterally. The examiner also diagnosed bilateral plantar fasciitis. In June 2011, the Veteran submitted a private physical examination by Dr. J.S. During the evaluation, it was noted that the Veteran had been diagnosed with bilateral pes planus and had undergone arthroplasties of his fourth and fifth digits. Dr. J.S. reviewed the medical evidence of record, and noted that x-ray findings showed bilateral pes planus deformities and degenerative joint disease. Upon physical examination, Dr. J.S. stated that the Veteran had "marked" tenderness to palpation over the plantar surface of both feet. He also had tenderness to palpation over the lateral border of both feet. Dr. J.S. diagnosed the Veteran with chronic bilateral foot pain, plantar fasciitis, and pes planus. The doctor then opined that the Veteran's chronic bilateral foot disabilities were of "moderate" severity as the Veteran had pain on manipulation and use of feet. In November 2011, the Veteran was afforded a VA general medical examination. The VA examiner noted that the Veteran had a diagnosis of "flatfeet." Upon physical examination, the Veteran's posture and gait were normal and the Veteran was able to walk in tip toe and heel to toe with minimal difficulty. The examiner further noted that the Veteran's bilateral pes planus was manifested by a low arch while on supine position and while walking on tip toes, but was absent when standing; consistent with flexible pes planus type I. Tenderness, edema, and calluses were not noted. There was no pain with foot manipulation or abnormal weight bearing. A diagnosis of bilateral pes planus was rendered. Upon review of all the evidence of record, both lay and medical, the Board finds that a 10 percent rating is warranted for the entire initial rating period on appeal. As noted above, the Veteran has been diagnosed with pes planus, plantar fasciitis, and degenerative joint disease. The Veteran has also credibly reported that he experiences painful motion of his feet. Further, Dr. J.S. specifically noted that the Veteran's bilateral foot disability was of "moderate" severity as the Veteran had pain on manipulation and use of feet. This is specifically contemplated under Diagnostic Code 5276 for a bilateral, moderate, acquired flatfoot disability. Accordingly, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 10 percent disability rating for the Veteran's bilateral plantar fasciitis disability is warranted. The Board further finds that a rating in excess of 10 percent is not more nearly approximated for the bilateral foot disability. Here, although the Veteran was found to have pain on manipulation and use of his feet, the medical evidence does not demonstrate that the Veteran's bilateral foot disability is manifested by "severe" bilateral pes planus, with objective evidence of marked deformity, swelling on use, and characteristic callosities. As noted by the November 2011 VA examiner, the Veteran was able to walk in tip toe and heel to toe with minimal difficulty. Tenderness, edema, and calluses were also not noted. Further, the private evaluation from Dr. J.S. specifically noted that the Veteran's bilateral foot disability was of "moderate" severity. The Board has reviewed VA treatment records and SSA disability records; however, while these records show continued complaints for the bilateral foot pain, but they do not provide evidence of current treatment with orthotic inserts or symptoms more nearly approximating a rating in excess of 10 percent. The Board has also specifically considered 38 C.F.R. § 4.71a, Diagnostic Codes 5277 to 5283, which include: Diagnostic Codes 5279 (metatarsalgia, anterior, unilateral or bilateral); 5280 (hallux valgus, unilateral); 5281 (hallux rigidus, unilateral, severe); and 5282 (hammer toe). The examination reports do not show that the Veteran has these disorders. Further, separate disability ratings under these codes would violate the rule against pyramiding under 38 C.F.R. § 4.14 (2014), as pain is explicitly or implicitly contemplated by each of these codes. The Board has also considered whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. Although the Veteran does have some limitation of motion or function with prolonged standing due to pain, the Board finds that this is adequately considered in the 10 percent rating criteria under Diagnostic Code 5276 and has been considered as a symptom or finding when considering the severity of the bilateral foot disability. For these reasons, the Board finds that the Veteran's bilateral foot disability does not more nearly approximate a rating in excess of 10 percent for the entire initial rating period on appeal. Rating for PTSD The Veteran was assigned a 50 percent rating for his PTSD disability, effective December 30, 2008, the date of his initial claim for service connection for PTSD. The Veteran has consistently maintained that his PTSD disability is more severe than what is contemplated by the currently assigned 50 percent disability rating. The Veteran is in receipt of a 50 percent disability rating for PTSD under Diagnostic Code 9411. A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2014). A 70 percent disability rating is assigned for 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 that is 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran's own occupation or name. Id. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2014); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.) (hereinafter DSM-IV). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Id. Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100, reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). GAF scores from 61 to 70 reflect 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, with some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect 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). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which 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., a depressed patient who avoids friends, neglects family, and is unable to do work). A GAF Score of 21 to 30 denotes behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g, sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function is almost all areas (e.g., stays in bed all day; no job, home or friends). Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether a 100 percent rating is more nearly approximated for the Veteran's PTSD disability. The evidence of record includes a May 2009 VA psychiatric examination, where the examiner diagnosed the Veteran with PTSD with chronic depressive disorder. During the evaluation, the Veteran reported recurring nightmares and that he slept approximately four hours a night. The Veteran also indicated that he avoided his family and recreational activities with friends. The Veteran stated that he was unemployed. Upon metal status examination, the Veteran was fully oriented, mildly unkempt, friendly, and cooperative towards the examiner. Mood was reported as mildly to moderately depressed with a restricted affect. The examiner indicated that attention, memory, and judgment appeared to all be within normal limits. The examiner indicated occasional decrease in work efficiency and intermittent periods of inability to perform occupational and social tasks due to symptoms of depressed mood, anxiety, and chronic sleep impairment. The examiner assigned a GAF score of 65, indicative of mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships. In an August 2010 VA examination report, the Veteran and his wife discussed symptoms associated with the Veteran's PTSD. Specifically, the Veteran's wife stated that he had difficulty sleeping and had "really bad" shakes while sleeping. She also stated that the Veteran would not shower or eat unless instructed to do so by her or his son. The Veteran's wife noted that the Veteran no longer drove, forgot people's names, and had difficulty concentrating. She also stated that the Veteran had to stand by a solid wall whenever he heard fireworks, such as on the 4th of July or at a neighbor's birthday party. The Veteran also reported that he did not have any acquaintances, and did not do well in crowds. He stated that he used to enjoy reading, but now becomes frustrated due to his inability to concentrate. Upon mental status examination, the August 2010 examiner noted that the Veteran was highly uncooperative, necessitating two examination sessions due to his unwillingness to engage in testing during the first session. His mood was presented as moderately irritable with full and reactive affect. The examiner noted that he had a "chip on the shoulder" attitude. The Veteran denied suicidal or homicidal ideation. Attention, memory, and judgment appeared to be within normal limits. The examiner assigned a GAF score of 75, indicative of transient symptoms resulting in no more than slight impairment in social, occupational, or school functioning. The evidence includes a June 2011 private psychiatric evaluation from Dr. E.T. It was noted that the Veteran was interviewed and medical records were reviewed. The Veteran was noted to be a poor historian and his wife provided factual information to aid the evaluation. During a mental status examination, Dr. E.T. noted that the Veteran was alert and was oriented to person, town, year, and month. His affect was reactive and his mood was anxious, dysphoric, and irritable. He reported sporadic panic attacks and agoraphobia was present. He had physical symptoms of anxiety and autonomic hyperactivity. Thought processes was slowed and inefficient and he had prolonged response latency. It was further noted that the Veteran struggled with language. He denied homicidal and suicidal thoughts or hallucinations. Dr. E.T. noted that the Veteran had dense initial insomnia with a four hour sleep latency followed by four hours of poor quality of sleep. He had frequent nightmares with combat themes. Energy level was low and appetite for food was poor. Concentration was also poor and he was easily distracted. The Veteran was also forgetful of facts and events. He could recall zero of three words at five minutes. His digit span was 2 forward and 0 in reverse and there were severe deficits of immediate short-term intermediate and long-term memory. Insight was limited and his judgment was impaired. Dr. E.T. diagnosed the Veteran with chronic PTSD and dementia due to head trauma. A present GAF score of 30 was assigned, reflective of behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g, sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function is almost all areas (e.g., stays in bed all day; no job, home or friends). A GAF score of 40 was assigned for the past twelve months, also indicative of impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. Dr. E.T. noted that, at the time of evaluation the Veteran had dementia related to a closed head injury (TBI) and PTSD as a result of injuries received while on active duty. The Veteran was afforded a VA examination in November 2011. The examiner noted that the Veteran had current diagnoses of PTSD, depression, and traumatic brain injury (TBI). Notably, the examiner opined that it was no possible to differentiate symptoms attributable to each diagnosis as these diagnoses could all affect memory, mood, and sleep. The examiner noted that the Veteran experienced the following symptoms, including depressed mood, anxiety, panic attacks that occurred weekly or less, difficulty understanding complex commands, impaired judgment, neglect of personal appearance and hygiene, and disorientation to time and place. A GAF score of 62 was assigned, reflective of some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships. In December 2011, the Veteran was afforded another VA examination to assist in determining the current severity level of his PTSD disability. During the evaluation, the Veteran reported complaints of depression, anxiety, panic attacks that occur weekly or less often, and a chronic sleep impairment. A mental status examination revealed normal speech, thought content, and thought processes. Insight, judgment, and impulse control were intact. There was no objective evidence of memory loss or impaired concentration. The examiner stated that the Veteran's symptoms caused an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but also noted that they cause clinically significant distress or impairment in social and occupational functioning. The examiner noted that the Veteran's depression was secondary to PTSD and provided a GAF score of 60, indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. The Veteran submitted a psychological evaluation from Dr. W.A. dated in June 2012. Dr. W.A. noted that she reviewed the past VA examinations of record, interviewed the Veteran and his wife, and outlined his psychiatric history in detail. Dr. W.A. also stated that, within a reasonable degree of certainty, the Veteran's symptoms of PTSD and his symptoms associated with a TBI were inseparable and inextricably intertwined. Presently, the Veteran exhibited gross impairment in thought processes, grossly inappropriate behavior, the inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time and disorientation to places that were not familiar to him prior to service. Upon mental status examination, Dr. W.A. noted that the Veteran was easily engaged in the evaluation, although he appeared to be quite reticent regarding direct discussions of his military experiences. His impulse control as demonstrated by his history of difficulties with roadside trash and other objects resembling IEDs, which ultimately led him to stop driving, in addition to his problems with irritability and angry outbursts appeared to fall below normal limits. Speech was unusually soft and slow, but quite normal in terms of content. Form of thought fell within normal limits, as did thought content. Suicidal and homicidal ideations, and perceptual abnormalities consistent with psychosis were denied, although vivid flashbacks largely occurring in response to trauma cues were apparent. The Veteran stated that his mood at the time of evaluation was "not too bad." Affect was somewhat blunted, though stable during the evaluation. During the interview, Dr. W.A. noted that the Veteran was oriented to all three spheres: person, place, and time. His attention capacities, as evidenced by his ability to track the time of discussion after extensive testing appeared to fall within normal limits. The Veteran's concentration abilities, as demonstrated by his recollection of two items from a three-item list subsequent to an interference task, fell below normal limits. Judgment and insight appeared to fall below normal limits. Dr. W.A. then assigned a GAF score of 40, which was based on some impairment in reality testing (or communication or major impairment in several areas such as work or school family relations judgment, thinking or mood). Dr. W.A. noted that the Veteran's GAF score was based on his difficulties in multiple areas including social functioning, employment functioning, judgment -related issues, thinking difficulties, and mood. Specifically, the Veteran's wife described a marked pattern of social isolation on her husband's part, which began subsequent to his military service. Problems with employment functioning were associated both with his cognitive difficulties, which led him to be unable to perform comparatively simple work related tasks, and with his emotional concerns as evidenced by his history of difficulties with confronting pet owners in conjunction with his work with an animal control company. His history of involvement in arguments on the job and his tendency to withdraw from anger-inducing stimuli were more likely than not to negatively affect his job functioning. The Veteran's emotional numbing in communication with his anger was likely contributory to his lack of insight. Moreover the Veteran's s ongoing difficulties with hygiene and his need for reminding in order to complete basic tasks were as likely as not to create difficulties within his family relationships. Judgment-related issues included the Veteran's history of irritability and angry verbal outbursts in addition to his reported reactivity to trauma cues, such as trash on the sides of roadway. Cognitive troubles in the form of difficulties with concentration, recent memory, and memory for events in the recent past were apparent during the mental status examination. Mood-related difficulties included the symptoms of a major depressive episode that were acknowledged during the interview and on the administration of the MMPI 2. The current GAF score was noted to be based on Dr. W.A.'s in person examination and careful review of the records. Dr. W.A. then opined that the Veteran's GAF score, reflective of PTSD and residual conditions, had more likely than not been consistent with the "severe impairment" indicated by a GAF score ranging from 31 to 40 since his discharge from service. VA treatment records show a confirmed diagnosis of PTSD in January 2009. VA treatment notes demonstrate subjective reports of insomnia, depressed mood, and one to two panic attacks per week. GAF scores in January 2009 VA treatment records were noted as 58 and 60. In a recent August 2014 VA treatment record, it was documented that the Veteran was having issues with hypervigilance and anxiety. Medical evidence from the Social Security Administration show that the Veteran experience trouble with employment due to a combination of mental health disabilities including major depressive disorder, cognitive disorder not otherwise specified, anxiety related disorder, affective disorder, and organic mental health disorders. Upon review of all the evidence of record, both lay and medical, the Board finds that the Veteran's PTSD results in total occupational and social impairment. As discussed in the psychiatric examinations above, the Veteran's PTSD has manifested symptoms of chronic sleep impairment, concentration and memory difficulties, impaired impulse control, depression, anxiety, and neglect of personal appearance and hygiene. See 38 C.F.R. § 4.130, Diagnostic Code 9411. During the June 2012 private psychiatric evaluation, Dr. W.A. stated that the Veteran exhibited gross impairment in thought processes, grossly inappropriate behavior, the inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time, and disorientation to places that were not familiar to him prior to service. The examiner also indicated that there was evidence of social isolation. The Veteran has been examined on six separate occasions and the GAF scores from these evaluations range from 30 to 75, indicative of mild to serious symptoms or mild to serious impairment in social, occupational or school functioning. Notably, in the June 2012 private psychiatric evaluation, Dr. W.A. stated that, after a detailed in-person examination and careful review of the records, the Veteran's GAF score, reflective of PTSD and residual conditions, had more likely than not been consistent with the "severe impairment" indicated by a GAF score ranging from 31 to 40 since his discharge from service. As indicated above a GAF score of 30 indicates serious impairment in communication or judgment (e.g, sometimes incoherent, acts grossly inappropriately. The examiner also found that there was gross impairment in thought processes, grossly inappropriate behavior, the inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time, disorientation to places that were not familiar to him prior to service and social isolation which are included as part of the criteria for a 100 percent rating. The Board finds the June 2012 examination report by Dr. W.A. to be highly probative as to the Veteran's prior and current PTSD symptoms. Specifically, Dr. W.A. interviewed the Veteran and his wife and provided a thorough description of the Veteran's past and present symptoms, military history, employment history, conducted psychological testing, including a mental status examination, and provided a GAF score of 40. Dr. W.A. also provided a rationale as to why the Veteran's PTSD symptoms were consistent with the "severe impairment" indicated by a GAF score ranging from 31 to 40 since his discharge from service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a rating of 100 percent for PTSD is warranted for the entire initial rating period on appeal. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's disabilities. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2014). As a 100 percent evaluation has been granted for PTSD for the entire rating period on appeal, the application of 38 C.F.R. § 3.321(b)(1) is moot with respect to that claim. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, 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 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's bilateral foot disability, including pain on manipulation and use of feet and difficulty standing for more than 30 minutes, is adequately contemplated by the schedular rating criteria and no referral for extraschedular consideration is required. The schedular rating criteria for the bilateral foot disability specifically provides for disability ratings based on a combination of history, symptoms, and clinical findings. The schedular rating criteria for the Veteran's bilateral foot disability specifically provide for ratings based on pain and other orthopedic factors. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are adequately contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the Veteran's foot disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Further, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, the Veteran has already been granted TDIU with an effective date of December 30, 2008, the date of the Veteran's initial claim for service connection. As such, the Veteran has already been granted TDIU and no further discussion is required. ORDER A rating of 10 percent, but no higher, for bilateral plantar fasciitis is granted subject to the law and regulations governing the payment of monetary benefits. A 100 percent rating for PTSD is granted subject to the law and regulations governing the payment of monetary benefits. ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs