Citation Nr: 1514860 Decision Date: 04/07/15 Archive Date: 04/21/15 DOCKET NO. 11-02 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and an anxiety disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and an anxiety disorder. 3. Entitlement to a disability rating in excess of 10 percent for bilateral pes planus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD U. Ifon, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to February 1971, with service in Vietnam. His Service medals and decorations include the Combat Infantryman Badge. This appeal to the Board of Veterans' Appeals (Board) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In November 2014, the Veteran attended a Video Conference hearing before the undersigned. The hearing transcript is of record. The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed August 2006 rating decision VA denied entitlement to service connection for PTSD and an anxiety disorder. 2. The evidence received since the August 2006 rating decision relates to an unestablished fact necessary to substantiate the claims pertaining to PTSD and an anxiety disorder. 3. The Veteran's service-connected bilateral pes planus is currently productive of no more than moderate impairment, with a weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, and pain on use of feet. CONCLUSIONS OF LAW 1. The August 2006 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160, 20.200, 20.302, 20.1103 (2014). 2. New and material evidence has been received since the August 2006 rating decision to reopen the claim of entitlement to service connection for PTSD and an anxiety disorder, now recharacterized as an acquired psychiatric disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 3. The criteria for a current evaluation in excess of 10 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code 5276 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen The Veteran was denied entitlement to service connection for PTSD and an anxiety disorder in an August 2006 rating decision. Although he expressed disagreement with the denial of service connection for PTSD, he failed to file a timely Substantive Appeal to the Board (VA Form 9). See 38 C.F.R. §§ 20.200, 20.302. Thus, the decision became final. As such, the Board must determine whether new and material evidence has been received to reopen the claim for PTSD and an anxiety disorder. 38 U.S.C.A. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In this regard, it must be noted that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). At the time of the final August 2006 rating decision, the RO determined the Veteran did not have a current diagnosis of PTSD and there was no evidence relating his anxiety disorder to his military service. Since the August 2006 rating decision, the Veteran has undergone ongoing psychiatric treatment, to include PTSD, and has had a more recent VA mental health examination. As such, this constitutes new and material evidence sufficient to reopen the claim because it was not previously of record and it demonstrates a previously unestablished fact that raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Further, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the claim, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Having received new and material evidence, the Board is reopening the previously denied claims of entitlement to service connection for PTSD and an anxiety disorder. Based on the medical evidence of record, the Board has recharacterized the issues of entitlement to service connection for PTSD and an anxiety disorder more broadly to include entitlement to service connection for an acquired psychiatric disorder, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the Veteran, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently adjudicated in a February 2013 Supplemental Statement of the Case. VA has fulfilled its duty to assist. The RO has made reasonable and appropriate efforts to assist the Veteran in obtaining the evidence necessary to substantiate this claim, including requesting information from the Veteran regarding pertinent medical treatment he may have received and obtaining such records, as well as affording him VA examinations during the appeal period. The Veteran was afforded pertinent VA examinations in April 2010 and August 2012. The examiners provided sufficient detail for the Board to make a decision and the reports are deemed adequate with respect to this claim. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). In fact, treatment records do not reveal any evidence of worsening and the Veteran did not allege worsening at his November 2014 hearing. In any event, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Hence, VA has fulfilled its duty to notify and assist the Veteran, and adjudication at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet, App. 384, 394 (1993). The appeal is now ready to be considered on the merits. Increased Rating for Bilateral Pes Planus The Veteran contends he is entitled to a disability evaluation in excess of 10 percent for bilateral pes planus. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Furthermore, the Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Pes planus (flatfoot) is rated under Diagnostic Code 5276. Under this code, a 10 percent disability rating is warranted where there is moderate impairment evidenced by weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, and pain on manipulation and use of the feet, unilaterally or bilaterally. Where there is severe impairment with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, a 20 percent rating is warranted for unilateral impairment, and a 30 percent rating is warranted for bilateral impairment. In an April 2010 statement, the Veteran reported experiencing foot pain and numbness in his toes. He stated he needed new shoes every 3 to 6 months and got "shots to ease [the] pain." He was afforded a VA examination in April 2010. At the time, he complained of daily pain made worse by walking and numbness in his right fourth toe. He reported treating the pain with injections, insoles, medication and elevating his feet. There were no symptoms of heat, redness, fatigability, weakness, lack of endurance, flare-ups, or foot joint disease, bilaterally. There were also no observed limitations to walking. The examiner did note evidence of pain and swelling affecting the plantar foot, and stiffness affecting the entire foot, bilaterally. Upon examination of both feet, there was no evidence of painful motion, instability, or weakness. There was bilateral evidence of swelling, tenderness, and abnormal weight bearing. The Achilles alignment was normal on non-weight-bearing; when weight-bearing, there was an inward bowing that was correctable with manipulation and without pain or muscle spasm. There was no forefoot or midfoot malalignment, and no pronation. An arch was present on non-weight-bearing and not present on weight-bearing. The heel valgus angulation was to 5 degrees and correctible by manipulation. The location of the weight-bearing line was over the great toe and there was no muscle atrophy of the foot. The examiner also noted the medial heel wear was greater than the lateral and the Veteran wore custom insoles. His gait was moderately antalgic on initial weight-bearing, and gradually improved to mid limp. At the time of examination, the Veteran was employed fulltime in maintenance and reported that pain affected his ability to work, however there were no days lost as a result. The Veteran attended another VA examination in August 2012 and reported no pain on use or manipulation of feet, and no extreme tenderness of the planar surface of either foot. There were no calluses caused by his flatfeet, and his symptoms on either foot were not relieved by arch support. He also reported swelling on use of feet. There was evidence of decreased longitudinal arch height on weight-bearing, bilaterally. There was no objective evidence of marked deformity of the foot, or marked pronation of foot. The weight-bearing line did not fall over or medial to the great toe. There was no "inward" bowing of the Achilles' tendon and no marked inward displacement or severe spasm of the Achilles tendon on manipulation. X-ray findings revealed arthritis in the right foot. At the time of examination, the Veteran was unemployed and stated he could not find work. He was fired from his last job in maintenance for "no call/no show." He again complained of pain in the fourth toe of his right foot and his feet swelling whenever he had to do any walking. The examiner commented that these complaints (pain in fourth toe and swelling) were not a result of his flatfeet. The Board notes the Veteran had numerous VA treatment notes pertaining to his feet and an ongoing diagnosis of flatfoot. Throughout these treatment notes, the Veteran repeatedly complained of foot pain. In addition to his flatfoot, there were also diagnoses of hammertoes and sinus tarsal syndrome. The Board notes there was no indication that these additional diagnoses were related to his flatfoot. At the November 2014 hearing, the Veteran essentially reported the same symptomatology regarding his feet as previously indicated. After reviewing the evidence of record, the Board finds a higher disability evaluation in excess of 10 percent for the Veteran's bilateral flatfoot is not warranted. Although the Veteran did experience symptoms of swelling, there was no objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation, or characteristic callosities. Rather, the evidence indicates the Veteran experienced only moderate impairment from his flatfoot as evidence by weight-bearing line over or medial to the great toe and inward bowing of the tendo Achillis. The Board further notes that at his most recent VA examination, there was no "inward" bowing of the Achilles' tendon and the weight-bearing line did not fall over or medial to the great toe. While the Veteran is competent to report any observed symptoms associated with his bilateral flatfoot, the objective examinations are more probative in determining the actual degree of impairment. Accordingly, the Board assigns a higher probative value to the examinations than to his lay contentions. The Board has considered staged ratings but finds the evidence of record does not demonstrate symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Furthermore, the Board notes the Veteran's complaint pertaining to his fourth toe on his right foot was not found to be related to his flatfoot. As such a separate rating is not warranted for this symptomatology. Finally, the Board concludes that there is a specific code for the specifically diagnosed disorder. As such, consideration of other foot codes is not appropriate as the schedule provides specifically for this pathology. Thus, other codes are not for application. As a preponderance of the evidence is against the assignment of an increased evaluation for the Veteran's bilateral flatfoot, the benefit-of-the-doubt rule does not apply, and the claim is denied. 38 C.F.R. § 4.3. Other Considerations Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2014). In exceptional cases an extraschedular rating may be provided. Id. The United States Court of Appeals for Veterans Claims has set out a three-part test for determining whether a Veteran is entitled to an extraschedular rating: (1) the established scheduler criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-scheduler disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the scheduler rating criteria specifically contemplates the extent and severity of the Veteran's bilateral flatfoot, which involves symptoms such as pain, abnormal weight-bearing, inward bowing of the Achilles tendon, swelling, and marked deformity. The Veteran does not contend, and the evidence does not demonstrate the scheduler criteria are inadequate to describe the severity and symptoms of his disability. Furthermore, there is no evidence of an exceptional or unusual disability picture, as the Veteran has not alleged a marked interference with employment or frequent periods of hospitalization and such is not shown in the evidence of record. Although unemployed at the time of his last VA examination, the termination of his last job was due to his performance and not his bilateral flatfoot. As such, the Board finds the rating criteria contemplate the severity of the Veteran's disability and referral for extraschedular consideration is not warranted. Further, the Veteran was denied entitlement to a total disability rating based on unemployability due to service-connected disability in an August 2012 rating decision. The Veteran has not expressed disagreement with this decision. Accordingly, the Board concludes that such claim has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER New and material evidence has been received to reopen the claims of entitlement to service connection for PTSD and an anxiety disorder. The claims are granted to this extent only. Entitlement to a disability rating in excess of 10 percent for bilateral pes planus is denied. REMAND Additional evidentiary development is required before the claim for entitlement to service connection for an acquired psychiatric disorder can be properly adjudicated. The Veteran has had varying psychiatric diagnoses in the years following separation from service. For instance, he has been diagnosed with PTSD (see August 2005 VA treatment note), anxiety disorder (see April 2005 VA treatment note), depressive disorder (see March 2009 VA treatment note), and mood disorder (see November 2010 VA examination report). At his September 2005 VA mental health examination, the examiner concluded his anxiety disorder was not related to his military service, but did not provide a supporting rationale for this conclusion. Furthermore, there has been no opinion as to whether the Veteran's depressive disorder is related to his military service. Accordingly, the Board finds a remand is warranted to adequately assess whether the Veteran has a current psychiatric disorder related to his military service. Inasmuch as the case is being remanded for additional adjudication, any relevant outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran to identify any pertinent private or VA treatment records that might be outstanding and associate them with the electronic claims file. Follow proper notification procedures. 2. After the aforementioned development has been completed, refer the Veteran's claims file to a VA psychiatrist for an addendum opinion. The examiner must review the Veteran's claims file, to include any relevant electronic records and the examination report should indicate that these files were reviewed. After reviewing the record, the examiner is asked to: Determine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's anxiety disorder or depressive disorder (or other diagnosed psychiatric disorder) is related to his military service, to include his reported combat-related stressors. If the examiner finds that another examination is warranted, then the Veteran should be contacted and scheduled for one. A complete rationale should be provided for all opinions and conclusions, including a discussion of the facts and medical principles involved. If the examiner cannot respond without resorting to speculation, the examiner should explain why a response would be speculative. 3. Readjudicate the issue on appeal. If the benefit sought remains denied, provide the Veteran and his representative a Supplemental Statement of the Case and an appropriate period of time for response. The Veteran 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 2014). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs